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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.
Wondering what your employee is smoking in the break room, likely in violation of your “no-smoking” policy? Chances are it is an electronic smoking device, such as an e-cigarette or vaporizer. What should you do about it? Anything?
Many people are familiar with the increasingly popular e-cigarettes and vaporizers, forcing employers to now grapple with the question of whether to permit these devices in the workplace. The answer to this question is constantly changing based on new and revised laws and regulations. It can be difficult to stay aware of this ever-changing issue.
Not A Fad
Electronic smoking devices, particularly vaporizers, are skyrocketing in
popularity. One example of this continued popularity is shown by Oxford
Dictionary’s selection of the word “vape” as the 2014 word of the year. With
around five million Americans currently “vaping” and a $2.5 billion industry
with a 23% rise in sales in 2014, the electronic smoking industry is here to
stay.
There is no indication that growth will slow down any time soon, as sales are projected to surpass $3.5 billion this year and are leaving companies scrambling to meet rising demand.
How They Work
At a basic level, e-cigarettes and vaporizers allow users to consume nicotine
or other substances without smoking tobacco. However, there are noted
differences between e-cigarettes and vaporizers. E-cigarettes are smaller
cigarette-like electronic devices with batteries that heat a cartridge
containing liquid nicotine until it produces an inhalable vapor.
A vaporizer is comparatively larger than an e-cigarette and resembles a large pen. The vaporizer gradually heat the “e-liquid” with warm air, so it tends to last longer than e-cigarettes. Also, the vaporizer is refillable whereas an e-cigarette cartridge must be replaced when spent. To distinguish electronic vapor from smoke, users have coined the term “vaping,” instead of smoking.
The cartridges and refillable liquids contain mostly liquid nicotine and flavoring. However, there are also small amounts of propylene glycol or vegetable glycerin. The e-liquids also come in a wide assortment of flavors, including traditional tobacco as well as kid-friendly ones like gummy bear, snickerdoodle and watermelon mint.
The Controversy.
So what is all the fuss over these devices? To put it simply, there is not a
lot of established data about the health risks. The technology is new, as the
first e-cigarette was marketed in 2002. Manufacturers only introduced
e-cigarettes to the United States in 2007.
Since the products are new, it is not surprising that scientific data is limited. Scientific studies generally conclude that e-cigarettes and vaporizers are less harmful to an individual’s health than traditional tobacco cigarettes. The problem is that no one knows exactly what “less harmful” means.
Due to these uncertainties, there is significant controversy surrounding these devices. Advocates emphasize the value of e-cigarettes and vaporizers as an effective cessation device. Opponents point to the potential health risks. Studies have found that e-cigarette vapor may contain metal particles, carcinogens like formaldehyde, and enough nicotine to cause measurable secondhand exposure. But the long-term effects of e-cigarette vapor and direct exposure to liquid nicotine are unknown.
Federal And State
Prohibitions.
State and local governments were among the first to take action against
e-cigarettes and vaporizers. New Jersey, Utah, and North Dakota placed bans on
the use of the devices in public places and hundreds of cities have followed
suit. For example, Los Angeles, New York, Boston, and Chicago all banned the
use of e-cigarettes in restaurants, bars, nightclubs, and other public spaces.
Several California cities even require vendors to acquire special licenses to
sell e-cigarettes.
The federal government is now weighing in on the debate. The FDA wants to keep a closer eye on e-cigarette manufacturers. The agency is concerned that manufacturers are not required to comply with cleanliness or safety standards. Manufacturers are also currently under no obligation to disclose ingredients. In 2014, the FDA released proposed regulations that would deem tobacco products, including electronic smoking devices, subject to the federal Food, Drug, and Cosmetic Act.
The proposed rule received more than 82,000 comments during the notice and comment period which ended in August of last year, which likely means that it could be some time before the final rules are released. If approved, it would give the FDA the authority to set age restrictions and the power to partake in rigorous scientific review to monitor the ingredients, manufacturing process, and therapeutic claims of e-cigarette companies.
The Pros And Cons
Why is this relevant to you?
Employers must take action and determine their company’s stance on the issue before a supervisor walks into the break room to find the crew puffing on e-cigarettes. While the debate between opposition groups and advocates is just heating up, don’t wait to act. Weigh the pros and cons of allowing electronic smoking devices in the workplace and determine what is best for your company.
There are many factors that employers must take into consideration. Rightly or wrongly, e-cigarettes are perceived as tobacco. The Surgeon General’s office categorizes e-cigarettes as a “tobacco product.” Many state and local governments restrict e-cigarette usage in the same way as tobacco. Some insurance companies already impose a surcharge on e-cigarette users’ premiums, equating e-cigarettes to tobacco.
Employers with nicotine-free hiring policies, particularly those in the healthcare industry, have started to specifically ban e-cigarette users. As a result, these employers are treating users of e-cigarettes and vaporizers the same as users of traditional tobacco products.
Give serious consideration to whether allowing e-cigarette use in your workplace undermines a smoke-free environment. Allowing this practice is likely to cause distractions, may cause questions or concern from customers, and may anger other employees concerned about the secondary impact on their health.
Although the long-term effects of e-cigarettes and vaporizers are currently unknown, the developing consensus is that secondhand vapor contains nicotine or something worse. As a result, secondhand vapor may pose a risk to pregnant women, the elderly, children, and individuals with asthmatic conditions particularly.
Our Advice
We think that the cautious course of action is to treat electronic smoking
devices the same as traditional cigarettes and other tobacco products under
your no-smoking policy. Taking this step and eliminating the risk is simple:
simply amend your employee handbook to include electronic smoking devices,
e-cigarettes, and vaporizers, in the definition of smoking. Employees will then
have to use e-cigarettes outside or offsite, depending on your particular
policy.
By amending your employee handbook, you reduce risk and eliminate distracting behavior. Nonsmoking employees (almost always the majority) will feel comfortable at work and employees who smoke will only be required to comply with an already familiar procedure. Most importantly, employees will not have to worry about the potential harm caused by e-cigarette use or secondhand vapor.
Although amending the handbook may be the easiest answer, remember to follow the proper procedures when amending your handbook. Ensure that any amendments are in compliance with state law, federal law, and especially the National Labor Relations Act. Finally, ensure that all employees receive a copy of the updated handbook, understand the revisions, and acknowledge in writing that they understand the revisions.
The official revised Employment Eligibility Verification Form I-9 was released March 8, 2013 by the U.S. Citizenship and Immigration Services (USCIS).
Employers should begin using this new form immediately. The new Form I-9 will contain a revision date of 03/08/13 that is located on the bottom left-hand corner of the form.
Final Changes to the Form I-9
The revised Form I-9 makes several improvements designed to minimize completion errors. The key revisions to Form I-9 include:
60-Day Grace Period
Prior versions of the I-9 will no longer be accepted and should not be used after May 7, 2013. The agency is providing employers 60 days to make the necessary internal changes in their business processes to implement the new form.
The new I-9 form can be downloaded here.
A Spanish-language version of the new Form I-9 is available, however may only be filled out by employers and employees in Puerto Rico only.
Handbook for Employer
The M-274 Handbook for Employers is in the process of being updated as well. Employers are advised by USCIS to follow instructions on the new Form I-9 until the revised handbook has been updated.
Employers are required to maintain an I-9 for as long as an individual is employed and for the required retention period following their employment termination, which is the later of three years after the date of hire or one year after the date employment ended.
Failure of an employer to ensure proper I-9 completion and retention may subject the employer to civil monetary penalties, and possibly even criminal penalties.
USCIS noted that employers do not need to complete the new Form I-9 for current employees for whom there is already a properly completed Form I-9 on file, unless reverification applies.