PCORI Fee Due by July 31, 2019

The Patient-Centered Outcomes Research Institute (PCORI) fee for 2018 is due by July 31, 2019. For groups whose plan year ended December 31, 2018 this will be the final PCORI payment they will have to make. Health plans whose plan year ended after December 31, 2018, but before October 1, 2019, will still have one final PCORI payment that will be due by July 31, 2020. 

The PCORI fee is imposed under the Affordable Care Act (ACA) on issuers of certain health insurance policies and self-insured health plan sponsors to help fund the research institute. The fee amount is based on the average number of covered lives under the policy or plan, and the total (along with the fee) must be reported annually on the second quarter IRS Form 720 (Quarterly Federal Excise Tax Return) and paid by July 31. The fee due July 31, 2019 is calculated as $2.45 per covered life. Plan sponsors must pay the PCORI fee by July 31 of the calendar year immediately following the calendar year in which the plan year ends.

For fully insured health plans, the insurance carrier files Form 720 and pays the PCORI fee. So, employers with fully insured health plans have no filing requirement (but will be charged by the carrier for the fee). Employers that sponsor self-insured health plans are responsible for filing Form 720 and paying their due PCORI fee. For self-insured plans with multiple employers, the named plan sponsor is generally required to file Form 720.

The fee may not be paid from plan assets, so it must be paid out of the sponsor’s general assets. According to the IRS, however, the fee is a tax-deductible business expense for employers with self-insured plans.

IRS Releases Proposed Form W-4 Redesign

On Friday, May 31, 2019, the IRS released a new proposed design of the IRS Form W-4 to be used starting in 2020.  The goal is to make it easier for employees to calculate accurate withholdings under the 2017 Tax Cuts and Jobs Act.  Employees who already have completed a Form W-4 will not be required to submit a new Form W-4 simply due to the redesign.  However, once finalized, the new Form will be required for employees hired on or after January 1, 2020.  

The IRS expects to release a near-final draft of the 2020 Form W-4 in mid-to-late July to give employers and payroll processors the tools they need to update systems before the final version of the form is released in November.

We will keep you abreast once the finalized form is released by the IRS for use.

HSA Limits Announced for 2020

Late May 2019, the Internal Revenue Service (IRS) announced the 2020 limits for contributions to Health Savings Accounts (HSAs) and limits for High Deductible Health Plans (HDHPs). These inflation adjustments are provided for under Internal Revenue Code Section 223.

For the 2020 calendar year, an HDHP is a health plan with an annual deductible that is not less than $1,400 for self-only coverage and $2,800 for family coverage. 2020 annual out-of-pocket expenses (deductibles, copayments and other amounts, excluding premiums) cannot exceed $6,900 for self-only coverage and $13,800 for family coverage.

For individuals with self-only coverage under an HDHP, the 2020 annual contribution limit to an HSA is $3,550 and for an individual with family coverage, the HSA contribution limit is $7,100.

No change was announced to the HSA catch-up contribution limit. If an individual is age 55 or older by the end of the calendar year, he or she can contribute an additional $1,000 to his or her HSA. If married and both spouses are age 55, each individual can contribute an additional $1,000 into his or her individual account.

For married couples that have family coverage where both spouses are over age 55, each spouse can take advantage of the $1,000 catch-up, but in order to get the full $9,100 contribution, they will need to use two accounts. The contribution cannot be maximized with only one account. One individual would contribute the family coverage maximum plus his or her individual catch-up, and the other would contribute the catch-up maximum to his or her individual account.

More Men Say They Are Uncomfortable Interacting with Women at Work

In a recent article released by SHRM,  it states in a recent survey of U.S. adults that 60% of male managers have admitted they are uncomfortable mentoring, working alone with or socializing with a female colleague in light of the #MeToo movement.

That’s an increase of 14 percentage points from last year when SurveyMonkey and LeanIn.org conducted a similar national online poll.

And another SurveyMonkey poll, conducted in March, found that senior men are 12 times more likely to hesitate to have a work dinner with a junior-level female colleague than with a junior-level male colleague and five times more likely to hesitate to travel on business with a junior-level woman.

But women need men’s support to advance in the workplace, according to LeanIn.org, the Sheryl Sandberg and Dave Goldberg Family Foundation.”If fewer men mentor women, fewer women will rise to leadership. As long as this imbalance of power remains, women and other marginalized groups are at greater risk of being overlooked, undermined, and harassed,” LeanIn.org says on its website.

A 2018 Women in the Workplace report from McKinsey & Co. noted that women receive less day-to-day support and less access to senior leaders than men, impeding their career growth. “Employees who interact regularly with senior leaders are more likely to ask for and receive promotions, stay at their companies, and aspire to be leaders,” the report authors wrote.

SHRM Online compiled the following articles from its archives and other respected sources on the importance of men supporting their female colleagues’ career growth. 

Wall Street Rule for the #MeToo Era: Avoid Women at All Cost 

No more dinners with female colleagues. Don’t sit next to them on flights. Book hotel rooms on different floors. Avoid one-on-one meetings. In fact, as a wealth adviser put it, just hiring a woman these days is “an unknown risk.” What if she took something he said the wrong way?

Across Wall Street, men are adopting controversial strategies for the #MeToo era and, in the process, making life even harder for women.
(Bloomberg)  

A Chilling Effect of #MeToo in Academic Medicine 

The movement is scaring off male academics from mentoring women, according to commentary penned by six Canadian scientists—all women working in the fields of medical research and education.
Mentoring in medical circles is a big deal, with academic doctors having a “professional and moral obligation to mentor the next generation of medical professionals,” the commentary says.

Not doing so would have serious consequences on a woman’s career trajectory, said Sophie Soklaridis, the commentary’s lead author and a scientist at the Toronto-based Centre of Addiction and Mental Health. 

“When women are not on the radar, it limits their opportunities for these kinds of advancements.” 
(CBC News)  

Viewpoint: The Number of Men Who Are Uncomfortable Mentoring Women Is Growing 

#MeToo has shaken up the workplace. Good—it needed shaking up. A safer workplace for women is a better workplace for everyone. Still, we have a long way to go before the workplace is truly equal. To get there, we need men to support women’s careers. 

We wish we could say that more men are stepping up for women. In fact, the opposite appears to be happening. This is disastrous. If they’re reluctant even to meet one-on-one with women, there’s no way women can get an equal shot at proving themselves. Instead, women will be overlooked and excluded, which is a terrible waste of talent, creativity, and productivity. It’s not good for business or for anyone. 
(Fortune)   

The Surprising Benefits When Men Mentor Women 

“There are benefits on both sides when men mentor women,” said David Smith, PhD., co-author of Athena Rising: How and Why Men Should Mentor Women (Routledge, 2018). “Women get more raises, they advance faster, and they stay in the organization longer. That’s not because men are better mentors, but because they have positions of influence and power. It’s a numbers game. Men get increased access to information, they build a more diverse and expansive network, and they tend to increase their interpersonal skills.”
(Inc.)  

Putting Humanity into HR Compliance: During #MeToo Movement, Replace Avoidance with Common Sense 

An unfortunate consequence of the #MeToo movement is that some male executives and managers say they now try to avoid female colleagues in the workplace. 

The closed-door meeting that bosses won’t have with their direct reports signals a lack of trust. The business meals that supervisors avoid sharing with lower-level employees result in lost opportunities for mentoring, coaching and developing stronger working relationships. Not traveling on the client visit or business trip impairs a mentee’s ability to build his or her network and gain valuable experience. 
(SHRM Online)  

Advice for Men Who Are Nervous About Mentoring Women 

Many senior male managers reportedly are responding to the #MeToo movement with a better-safe-than-sorry attitude and are pulling back from mentoring women. But if we want more women leaders, we need men in powerful positions to support their ascension. 

Here are five suggestion on how men should approach mentoring in today’s workplace. 
(Harvard Business Review)  

Tips for Managers 

Closing the gender leadership gap is an imperative for organizations that want to perform at the highest levels. Leveraging the full talents of the population provides a competitive advantage; companies with more women in leadership roles perform better, and employees on diverse and inclusive teams put in more effort, stay longer, and demonstrate more commitment. To change the numbers, gender bias and stereotypes have to be understood and counteracted. 
(LeanIn.Org)  

National Mentoring Resource Center 

The National Mentoring Resource Center provides a collection of mentoring handbooks, curricula, manuals, and other resources that practitioners can use to implement and further develop program practices. This growing collection of resources have all been reviewed by the National Mentoring Resource Center Research Board. Most items are directly available for download here or elsewhere online. 
(National Mentoring Resource Center)

An Employer Guide To Navigating Newly Revived No-Match Letters

The Social Security Administration (SSA) recently resurrected its practice of issuing Employer Correction Request notices – also known as “no-match letters” – when it receives employee information from an employer that does not match its records. If you find yourself in receipt of such a letter, it is recommended that you take the following seven steps as well as considering consulting your legal counsel.

Step 1: Understand The Letter

The first and perhaps most obvious step is to read the letter carefully and understand what it says. Too often employers rush into action before taking the time to read and understand the no-match letter. 

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The ABCs Of CBD For Employers

An increasingly common series of questions employers have been asking of late relate to their employees’ use of CBD. Will use of CBD products impair employees? If an employee or applicant tests positive on a drug test and blames seemingly innocuous use of CBD, what should we do? Should it be permissible to allow use of CBD products in a zero-tolerance workplace?

Before diving into an analysis of these and similar questions, it’s important to get on the same page regarding the substance. Cannabidiol – or CBD – is a chemical found in marijuana and its close relative, hemp. Pure CBD does not contain tetrahydrocannabinol (THC), the psychoactive ingredient found in marijuana that produces a high. 

The most common CBD formulation started as oil, but CBD is also sold as an extract, a vaporized liquid, and an oil-based capsule. CBD-infused beverages are probably the most common CBD product, but use of CBD-based cosmetic and skincare products is surging in both retail stores and online.

Currently, the only CBD product approved by the Food and Drug Administration is a prescription oil called Epidiolex, approved to treat two types of epilepsy. Aside from Epidiolex, state laws on the use of CBD vary. While CBD is being studied as a treatment for a wide range of conditions, including Parkinson’s disease, schizophrenia, diabetes, multiple sclerosis, and anxiety, research supporting the drug’s benefits is still limited. However, the FDA recently announced hearings on the potential lawful use of CBD in cosmetics, food and supplements.

What’s The Difference Between CBD And THC?
The technical explanation regarding the difference between CBD and THC centers around the fact that all cannabinoids – both CBD and THC – interact with specific targets on cells in the body, the CB1 and CB2 receptors. CB1 receptors are found mainly in the brain and are important for learning, coordination, sleep, pain, brain development, and other functions; CB2 receptors are found mostly in the immune system.

CBD has very little effect on both CB1 and CB2 receptors. This is probably why it does not make people high and is not mind-altering; in fact it may even blunt some of THC’s psychotropic effects. Most marijuana grown for recreational use is very low in CBD content, and high in THC. As Medical News Today explained, “CBD is an entirely different compound from THC, and its effects are very complex. It is not psychoactive, meaning it does not produce a ‘high’ or change a person’s state of mind.”

CBD And Impairment
While you should consult with your medical advisor on specific situations, you generally should not be concerned about your workers becoming impaired from CBD use. A 2015 NIH – National Institute on Drug Abuse (NIDA) paper explained why CBD should not impair employees: Different cannabinoids can have very different biological effects; CBD, for example, does not make people high and is not intoxicating. And, there is reason to believe it may have a range of uses in medicine, including in the treatment of seizures and other neurological disorders.

However, that’s not to say that CBD will never present a problem for you. Much about the substance is still unknown, as stated in a 2015 National Institute of Health analysis: “Marijuana has over 500 chemicals in total, including the 100 or so cannabinoids, so we will still be learning about this plant for years to come.”

A particular problem stems from the fact that your workers might not know exactly what else is in the CBD product they are using. Most CBD products are sold as supplements and are not regulated by the FDA, meaning they could also have various other substances mixed in. For example, is Delta 9-tetrahydrocannabinol (THC), the metabolite that makes one high, present? What else could be added to the mix?

A recent study of 84 CBD products bought online showed that more than a quarter of the products contained less CBD than labeled, but that THC was found in 18 products. Research published in The Journal of the American Medical Association revealed that 43 percent of CBD oils tested had more THC in them than labeled.

Positive Drug Tests
This means that one of your workers or applicants might think they are staying on the right side of the law when using a CBD product, but could inadvertently ingest substances that violate your valid drug policies. Barry Sample, the Director of Science and Technology for the drug testing laboratory Quest Diagnostics, recently observed that the government is not ensuring the level of THC remains low because CBD oil is not regulated in the United States. Therefore, he said, “if somebody is using a CBD oil that contains residual THC in it, they very likely could test positive on a urine drug test. Not because of the CBD itself – but because of a contaminant that is in that oil.”

While CBD itself would not report positive for marijuana or marijuana metabolite, if the CBD product used by your employee or applicant contains THC at a sufficiently high concentration, it is possible, depending on usage patterns, that the use of these products could cause a positive urine drug test result for marijuana metabolites. For example, in some states, CBD may contain up to 5% THC.

So what should you do if an applicant or employee tests positive and claims they only used CBD? Unless an employee is using the sole FDA-approved medical product, Epidiolex, a confirmed positive for THC means that the employee has probably ingested THC – even though they may have assumed that a CDB product would not result in a positive test or lead to any sort of impairment. The burden would then be on the employee to prove that they did not ingest THC, and you would need to consider how to respond to such a positive test on a case-by-case basis.

Use At The Workplace
Because the FDA does not regulate CBD products other than Epidiolex, an employee has no guarantee that their supposedly pure CBD product does not contain THC. You should educate employees about this problem and explain that even if they advise you in advance that they are using a CBD product that is not supposed to impair them or create a safety threat, you will have to take action if they later test positive for THC.

Generally, it takes more of a food or drink containing THC to impair an employee or to result in a positive test, but there are no guarantees. Similarly, CBD creams, oils, and cosmetics containing THC would be less likely to result in a positive test result; the research on these products may be too sparse for an employee to risk their employment.

5 Important Takeaways
The five most important things you should keep in mind regarding CBD use and the workplace:

1. While CBD itself should not contain amounts of THC, to test positive, the CDB supplement used by your worker may actually contain THC, which does impair workers and would violate most drug and alcohol policies.
2. Individually evaluate each situation of CBD use that comes to your attention. Discuss with your testing provider whether CBD will show up under the drug panel tested if no THC is present. Consult with your labor and employment counsel if you end up considering taking (or not taking) action against an employee or applicant because of CBD use.
3. In your drug education efforts, explain to employees that almost all CBD products are not regulated by the FDA and they have no meaningful guarantee of what’s in the supplement. In other words, those using CBD products need to know they are using them at their own risk – if THC turns out to be present, they will violate employer policies.
4. Under a Department of Transportation-mandated interpretation, a positive test for THC will not be excused by the fact that the product was a CBD product or described as medical marijuana.
5. Finally, three states’ courts have held that their state’s medical marijuana laws require an employer to engage in an accommodation analysis of whether their medical marijuana user should be accommodated. It’s not clear how CBD product use would be treated; you should consult with your employment attorney before taking action in these locations.

FMLA Qualifying Leave Must Be Under the FMLA

Employers cannot permit employees to use PTO or other paid leave prior to using unpaid FMLA leave for an FMLA qualifying condition, according to a new Department of Labor Opinion Letter. The Opinion Letter also provides that employers cannot designate more than 12 weeks of leave per year as FMLA (or 26 weeks per year if leave qualifies as FMLA military caregiver leave). 

FMLA-Qualifying Leave Must Run Concurrently With Paid Leave Policies

Under the FMLA, covered employers must provide eligible employees up to 12 weeks of unpaid, job and benefit-protected leave per year for qualifying medical or family reasons (or up to 26 weeks per year for qualifying military caregiver leave). The Opinion Letter addresses the situation where an employee anticipates a leave of absence for an FMLA-qualifying reason and the employee wants to take off more than the 12 weeks allotted under the FMLA by using other available paid leave policies (such as vacation, sick pay, PTO, etc.) at their disposal. Under this scenario, the employee notifies the employer that he or she plans to exhaust an available paid leave policy first for an FMLA-qualifying reason, and then after that time has run out, he or she desires to take the 12 weeks of FMLA leave.
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EEOC Instructs Employers of New Sept 30th Deadline for Reporting Pay Data

A federal judge announced on April 25th that mid-size and large employers will now have until September 30, 2019 to provide 2018 pay data to the EEOC, instead of the previous deadline of May 31st.

U.S. District Judge Tanya Chutkan accepted the agency’s proposal to make employers submit their 2018 pay data this fall in a bench ruling and also ordered the EEOC to collect a second year of pay data, giving it a choice between collecting employers’ 2017 data or making it collect 2019 data down the road.

Judge Chutkan said she accepted the agency’s proposed due date “even though the court harbors its own doubts” about why it would take so long to collect pay data.

The judge gave the agency until April 29 to put a statement on its website informing employers of her decision and until May 3 to decide which second-year dataset (2017 or 2019) to collect. The agency must also give the court a compliance update on May 3 and provide further updates every 21 days after that and must take “all necessary steps” to meet the Sept. 30 deadline, she said.

Judge Chutkan’s decision Thursday ends weeks of stakeholder debate about when to set the filing deadline following her early March ruling reinstating the data collection, which the Obama administration adopted to root out gender- and race-based pay gaps. The form supplements the agency’s long-running collection of employers’ demographic data. Both components apply to all employers with 100 or more employees and federal contractors with 50 or more employees.

The Trump administration rolled back the pay data component in 2017, citing its paperwork burden on employers, among other things. The National Women’s Law Center and the Labor Council for Latin American Advancement challenged this rescission as unfair and poorly reasoned in November 2017 and won summary judgment last month, days before the EEOC started accepting employers’ demographic data for 2018.

The ruling apparently blindsided the EEOC, which said earlier this month it did not have the infrastructure to accept and secure employers’ pay data, but could set a Sept. 30 deadline if it hired a contractor.

Business groups, including the U.S. Chamber of Commerce, likewise claimed to have been taken unaware by the collection’s reinstatement, saying member employers have not kept data in a form transmissible to the EEOC and would need at least 18 months to complete the survey.

Judge Chutkan chided the EEOC for its lack of preparation at a hearing last week on when to set the deadline, saying she did not understand why the agency had not restored a page on its website telling employers how to submit their pay data. She said Thursday it was clear the EEOC never crafted a contingency plan in the event that the plaintiffs won and that the administration’s actions before and since her March order “indicate that the government is not committed to a prompt collection of Component 2 information.”

Study Finds Millennials are Less Healthy than Generation X Were at the Same Age

A third of millennials have health conditions that reduce their quality of life and life expectancy, according to a new study of medical claims by the Blue Cross Blue Shield Health Index (BCBS Health Index). The report found that millennials had substantially higher diagnoses for eight of the top 10 health conditions than Generation X, and based on their current health status, millennials are more likely to be less healthy when they’re older, compared to Gen Xers. These findings are based off of a study of millennials who were between the ages of 34 and 36 in 2017 and Gen Xers who were 34 to 36 in 2014. 

The biggest health differences between the two generations was the higher impact of physical conditions driven by increased cardiovascular and endocrine conditions, including diabetes. 

A recent Blue Cross Blue Shield Association (BCBSA) survey found that 83% of millennials consider themselves in good or excellent health, and that 68% of millennials have a primary care physician, compared to 91% of Generation X, which is an important factor in preventative care.

“Based on these findings, we’re seeing that millennials are not seeking preventative care and it’s not only having an effect on their immediate health, but will significantly impact their long-term health as well,” said Vincent Nelson, MD, vice president, Medical Affairs for BCBSA. “With millennials on track to become the largest generation in the near future, it’s critical that they’re taking their health maintenance seriously. Our plan is to address this issue now to ensure millennials, and all Americans, take a proactive role in maintaining their health and wellbeing.”

The Blue Cross Blue Shield, The Health of America Report series, “The Health of Millennials,” examined the BCBS Health Index, a database of de-identified medical claims from more than 41 million commercially insured members of Blue Cross and Blue Shield (BCBS) companies. The findings revealed overall health begins to decline at the age of 27. 

Additional findings from the study are: 

• Millennial women are 20% less healthy than their male counterparts, specifically driven by cases of major depression, type II diabetes and endocrine conditions. 
• Millennials in southern states, particularly Alabama, West Virginia and Louisiana are the least healthy, while millennials in western states, such as California, Arizona, Nevada and Colorado are the healthiest. 

To identify key drivers of millennial health and how to improve it, BCBS companies will host Millennial Health Listening Sessions across the country. Through these workshops, BCBS companies will hear from millennials, leading health care experts, employers and digital leaders on how to improve the health of millennials. Independence Blue Cross will kick-start the listening sessions by hosting the first one on April 25 in Philadelphia, Pennsylvania. 

A millennial is someone who was born between 1981 and 1996, and there are nearly 73 million millennials in the U.S. right now – the second largest generation among commercially insured Americans. Gen Xers were born between 1965 and 1980. 

This is the 26th study of the Blue Cross Blue Shield, The Health of America Report® series. For more information, visit https://www.bcbs.com/the-health-of-america. 
 

Gonna Have To Face It We’re Addicted to…Everything?! Digital Addictions In The Workplace

Cell phones. Video games. YouTube. TV. iPads. Kindles. Online Gaming. Netflix. Hulu. Amazon Prime. Stream, click, stream, repeat.

As the years go on, so too does the list of things to which people become addicted. Emerging front and center as a relatively new but common modern addiction—to which employers are having difficulty responding—is the concept of a digital addiction. A digital addiction, also referred to as a gaming addiction, internet addiction, smartphone addiction, and/or social media addiction, is more than a mindless but incessant checking of one’s cell phone, more than browsing Facebook while taking a break from company-focused work. It is a complete disruption to and dysregulation of the daily life of an individual, due to compulsions to engage in the addictive and cyclical behaviors.

Digital Addictions

Like other, better understood addictions, a digital addiction essentially renders an “addict” unable to perform a major life activity, such as sleeping, eating, or, better yet, working. Although the behaviors themselves (use of electronic devices) may seem more benign than drugs, alcohol, or sex, the personal impact is no less severe.

And perhaps even more concerning is the fact that digital addictions can be hard to spot and even harder to stop: we live in a day and age that virtually necessitates constant and unwavering digital and electronic connection. Behaviors that may be dangerous for a minority of the population with a digital addiction are entirely socially acceptable for the majority of individuals, rendering the line between an addiction and a habit blurrier than ever. 

Organizations worldwide have begun conducting investigations and research into the impact of a digital addiction upon both the quality and productivity of life. Despite the fact that these studies are in the early phases, the results ought to be taken seriously, as they mirror those of better understood addictions.

By way of example: a high school student reported being unable to live without his cell phone and used it so frequently that he became hospitalized due to lack of exercise and movement. While in the hospital, he was told he had the lungs of someone nearly four times his age—the direct result of an addiction to his phone at the expense of other, healthier coping mechanisms. Multiple recent deaths in South Korea have been directly blamed on an incessant addiction to gaming, as the victims lost track of the real world and their personal needs. And, for the first time in 28 years, the World Health Organization has gone so far as to revise its International Classification of Diseases. What made the cut? “Gaming disorder,” a sub-type of a disorder arising from behavioral addictions.

Treatment For Digital Addictions

As the prevalence and understanding of digital and gaming addictions rises, so too does an understanding of the disorder and its treatment. Rehabilitation facilities are developing specialized tracks focusing on gaming addictions. One such center is The Edge, located in Thailand, touting its programs designed to break digital addictions, treat the root causes leading to the addictive behaviors, and reprogram and repair relations to the digital world and its technology. A Place of Hope in Washington State boasts another similar program, as do countless centers from California to Florida. Although this addiction is not yet recognized in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), treatment programs are seeing the growing need for programs specifically tailored to digital and gaming addictions.

As with other addictions, a digital or gaming addiction often arises out of feelings of discontent, stress, pressure, anxiety, depression, or other underlying mental health conditions. The co-occurrence of one or more disorder is often present, making the addiction more difficult to treat. Similarly, and as with other addictions, the behaviors (here, gaming or compulsive use of the internet) are but a symptom of a deeper cause; typically, the behavior itself serves to either avoid, ignore, or “numb out” from more complicated inter and intrapersonal issues. In other words, the presentation itself may not be the cause, but the presentation may be the first behavior to “fix.”

What Does This Mean For Employers?

What does this mean for you as an employer? The Mental Health Parity and Addiction Act of 2008 requires health insurers and group health plans to provide parity between its coverage of mental health treatment and medical or surgical care, a dramatic shift that allowed hundreds of thousands of individuals to seek the mental health treatment they so desperately needed. It increased the prevalence of treatment facilities and rehabilitation programs focusing on a variety of mental health issues, as they are now able to receive funding through insurance companies when treatment otherwise would not be covered.

Although a digital addiction may not officially be recognized in the DSM-5, that does not make it any less severe or serious. Furthermore, because individuals often have co-occurring disorders or conditions, it is likely that an individual with a digital addiction may also be suffering from at least one other mental health condition. This, in turn, increases the chance that they would be accepted into a treatment program funded by their health insurance.

In recent years, employers have come to understand their obligations related to mental health issues and disabilities; employees are to be granted reasonable accommodations for mental health disorders the same as they would be for a physical disorder or illness. This includes, when applicable, leave to attend treatment on an inpatient, partial hospitalization, intensive outpatient, or outpatient basis under federal laws like the Family Medical Leave Act or Americans with Disabilities Act, as well as state laws, like the California Family Rights Act and California’s Fair Employment and Housing Act. What, then, is an employer’s obligation if an employee exhibits a digital addiction?

It is prudent to accommodate an individual with a digital addiction the same way you would accommodate any other individual: engaging in the interactive process, and reviewing and discussing any restrictions, limitations, or accommodations that may be needed. While there may be concerns regarding an employee’s ability to return to work in the digital age after receiving treatment for a directly related addiction, this concern cannot be used as a basis to engage in an adverse action against an employee.

This remains the case even if the disorder is not officially “diagnosable.” In other words, an employer must take a digital addiction seriously, even if it does not understand the addiction or personally believe the addiction is legitimate.

Where Do We Go From Here?

For now, there are several best practices employers can use concerning digital addictions. An up-to-date compliant handbook with policies addressing leaves and accommodations goes a long way. A handbook creates the foundation for your policies and procedures. If your handbook is wrong, or if you (gasp) do not have a handbook at all, your internal policies and procedures are much more likely to be problematic and subject to tougher scrutiny.

Your handbook also needs to be acknowledged by your employees. You can use an employee’s acknowledgement to show they were well aware you were more than willing to reasonably accommodate them and welcomed any and all accommodation requests.

Document, document, document. We cannot say it enough: document notice of an employee’s alleged disability; meetings and communications discussing the alleged disability; and requested, offered, or denied accommodations. This helps paint a picture that you took the alleged disability seriously and tried to reasonably accommodate. Without documentation of this interactive process, it may as well have never happened.

Train your managers and supervisors. They can make or break your defense. They typically receive notice of an alleged disability or requested accommodation first. If they fail to take this seriously and begin the interactive process, your defense can be severely undermined. They need to know what constitutes “notice,” that the company has interactive process obligations, and how to handle accommodation requests.

Not so fast…do not be too quick in denying accommodations (even if you want to).  The law requires that you participate in a “good faith” interactive process, which means considering each and every possible reasonable accommodation in “good faith.” Document any legitimate reasons why an accommodation may not be “reasonable,” but understand that not everything is “unreasonable.” While employers do not have to provide accommodations that are unduly burdensome, “undue burden” is an extremely tough standard to meet and is looked at primarily in financial terms by courts. So, unless a particular accommodation costs you some serious money, results in a loss of serious money through disruption to your operations, or is a direct threat to the health and safety of others, you are probably going to have to provide it.

Watch the timing of adverse actions. Retaliation claims are on the rise and are currently the number one charge filed with the Equal Employment Opportunity Commission. Retaliation largely focuses on timing – how long after an employee engaged in “protected activity” (like requesting a reasonable accommodation) did they suffer an “adverse action” (like termination). The closer in time, the more retaliation seems plausible. To combat this, make sure you properly manage bad employees, have the documentation to support your story, and terminate as soon as termination is legitimately warranted.

Finally, stay up-to-date on changes in the law concerning digital addictions. A critical part of avoiding future claims is being aware of your ever-changing legal obligations. 

Conclusion

The times continue to change, and so too does our understanding of modern addictions. Video conferencing and cloud hosting have begun to replace in-person meetings and file rooms. iPads and tablets have begun to replace notebooks and pads of paper. Cell phones have rendered landlines all but obsolete.

Although new technology may be initially feared, with time comes understanding. This age-old maxim holds true with respect to digital and gaming addictions, as well: although it may not be well known as of present, awareness begets recognition, and recognition begins understanding. Patience, an open mind, and a good labor and employment attorney will take care of the rest.