Welcome to Foresight and Insight.

The Hartford’s Group Benefits Division is pleased to provide updates on newsworthy legislative and regulatory actions related to group disability and life insurance. Periodically, we’ll also offer more in-depth reports on workplace, workforce and benefit trends.

In the December 2009 edition:

Women Gain as Breadwinners, but...

Survey Finds They Lag Behind in Life Insurance Knowledge and Use

Women have made gains in the job market, now holding half of our nation's 132 million jobs, according to recent data from the U.S. Bureau of Labor Statistics. However, a gap remains in their understanding and use of benefits that help protect their income. (read more)

To see additional white papers and articles on benefit trends, employee productivity and leave management, visit the “Insights and Expertise” section of our enhanced employer public site: www.thehartford/groupbenefits.com

Dr. Robert Froehlich ("Dr. Bob") Offers Market Commentary

Dr. Robert Froehlich recently joined The Hartford as its Senior Managing Director. A highly regarded market expert, Dr. Froehlich will draw on his thirty years of insight and experience to educate clients and help grow the company’s investment business. Known to many as “Dr. Bob,” his market commentary will be featured periodically in Foresight & Insight.

• Read “Why Not Y?”  Dr. Bob sheds some light on the “Alphabet-Soup Debate” surrounding what shape the economic recovery will take.
• Read more market commentaries by Dr. Bob Froehlich.
• Read about Dr. Bob Froehlich's background.
  
  

Coverage Expanded Under Military Leave Provisions of the FMLA

On October 28, a Hartford Foresight & Insight Alert reported that President Obama had signed the National Defense Authorization Act of 2010, which expanded coverage under the military leave provisions of the Family and Medical Leave Act (FMLA).

Note: The Hartford’s Leave Management Unit is incorporating these new requirements, as necessary, into its leave management workflow process. All employers should review and adjust their FMLA leave policies accordingly to reflect these new military leave amendments.

• Read the full article
  

President Obama Announces New Initiatives During National Disability Employment Awareness Month

President Obama has announced that his Administration is taking several steps to ensure that there is fair and equal access to employment for all Americans, particularly the 54 million people in this country living with disabilities. The announcement came in October, which is National Disability Employment Awareness Month.

• See ADA related story below.

• Read the full article

ADA Compliance - Ten Small Business Mistakes

This thirteen-minute video identifies common mistakes that small businesses make when trying to comply with the ADA and addresses the importance and value of doing business with 50 million people with disabilities. The video features statements by store owners expressing their doubts or misunderstandings about the ADA followed by responses from the Assistant Attorney for Civil Rights and other Department of Justice employees explaining the law in common sense terms.  (http://www.ada.gov/videogallery.htm)

Court considers employee's charge of FMLA confidentiality violation

An employee filed suit against her supervisor, claiming that the supervisor interfered with her FMLA rights by improperly disclosing information related to her medical condition. In its ruling, the court considered both FMLA and ADA confidentiality provisions.

• Read the full article

Employee challenges employer's request for second opinion evaluation in stress case

An employee filed suit against his employer, State of Nevada Department of Conservation and Natural Resources, and six individuals for interference with his FMLA rights. The court was asked to rule on the State’s request for a second opinion evaluation and the employee’s subsequent right of refusal.

• Read the full article

Court sites ADA definition of disability in ruling on validity of leave request

An employee alleged that her employer interfered and retaliated against her for exercising her FMLA rights after she requested FMLA due to her daughter's difficult pregnancy. The court looked to the ADA definition of "mental or physical disability" in order to decide whether or not her daughter, who was over the age of 18, was "incapable of self-care because of a mental or physical disability."

• Read the full article

Decision: FMLA does not require an employer to retain an employee who cannot perform the essential functions of job

In the case of Charlene Wisbey v. City of Lincoln, Nebraska, the court was asked to determine if the employee’s FMLA rights were violated when she was asked to undergo a fitness for duty exam for her job as an emergency dispatcher

• Read the full article

Meet Dr. Bob Froehlich

The Hartford Financial Services Group, Inc., (NYSE: HIG), recently named Dr. Robert Froehlich, known to many as Dr. Bob, as a Senior Managing Director. Froehlich will provide his insight and observations on the markets and economy to financial advisors and individual investors through investment commentary, public appearances and customer engagement. He will also help shape the firm's retail investment approach, value proposition and product offering as part of Hartford Life's investment oversight and strategy committee and as an officer of The Hartford Mutual Funds.

Most recently the retired Vice Chairman of Deutsche Asset Management, Froehlich brings over thirty years of Wall Street and Main Street experience to his new role at The Hartford. He began his career in the public sector, as chief financial officer for a utility and, as city manager for Beavercreek, was one of the youngest city managers ever in the state of Ohio. Then he transitioned to the private sector, joining Ernst & Whinney as an economic, financial and investment consultant.

From Ernst & Whinney, Froehlich joined Van Kampen Merritt as director of research and later became the firm's first chief investment strategist. After Van Kampen, he joined Kemper Funds which became Scudder Funds and is now part of DWS Investments, the asset management arm of Deutsche Bank. Froehlich has a bachelor degree in history and a masters in public administration from the University of Dayton, a masters in management from Central Michigan University and a doctorate in public policy from California Coast University.

Highly regarded as an investment expert, Dr. Bob has delivered speeches on investing in 107 different countries, as well as all 50 United States. His primary areas of expertise include U.S. and global economics, global currency and financial markets, public policy and politics and U.S. and global demographic trends.

In his high profile career, he has built a strong following in the mutual fund industry and has been a regular on financial programs such as CNBC, Fox News, Bloomberg TV and CNN. He has been often quoted in The Wall Street Journal, The New York Times and Barron's. Having started his Wall Street career as an investment analyst, he is also a prolific researcher, writer and best-selling author, having written four books on investing. 

Coverage Expanded Under Military Leave Provisions of the FMLA

On October 28, 2009, President Obama signed the National Defense Authorization Act of 2010, which includes amendments to the military leave provisions of the Family and Medical Leave Act (FMLA). These provisions were effective immediately upon enactment.

Qualifying exigency leave – which provides up to 12 weeks of leave for family members to deal with certain issues arising from an impending deployment – is amended to include family members of all active duty service members who are deployed to a foreign country. Previously, qualifying exigency was only available for covered military members in the Reserves or National Guard deployed in support of a contingency operation.

Military caregiver leave – which provides up to 26 weeks of leave to care for a covered service member in the regular Armed Forces or Reserves who suffers a serious injury or illness while on active duty – is amended to extend the 26 weeks of leave to family members to care for a veteran for up to five years after he or she leaves military service if the veteran develops a service-related injury or illness that was incurred or aggravated while on active duty.

Additionally, references throughout the FMLA to "active duty" would be changed to "covered active duty" to include service members of the regular and reserve components of the Armed Forces who are deployed to a foreign country.

The Hartford’s Leave Management Unit will incorporate these new requirements, as necessary, into its leave management workflow process. All employers should review and adjust their FMLA leave policies accordingly to reflect these new military leave amendments. (Group Benefits Law Department, The Hartford)

Note: The Hartford’s Leave Management Unit will incorporate these new requirements, as necessary, into its leave management workflow process. We will continue to monitor any activity related to regulations, if any, supporting these new amendments and will provide additional communications as necessary.

All employers should review and adjust their FMLA leave policies accordingly to reflect these new military leave amendments.

President Obama Announces New Initiatives During National Disability Employment Awareness Month

President Obama has announced that his Administration is taking several steps to ensure that there is fair and equal access to employment for all Americans, particularly the 54 million people in this country living with disabilities. The announcement came in October, which is National Disability Employment Awareness Month.

"My Administration is committed to ensuring that all Americans have the chance to fulfill their potential and contribute to our nation," said President Obama. "Across this country, millions of people with disabilities are working or want to work, and they should have access to the support and services they need to succeed. As the nation’s largest employer, the Federal Government and its contractors can lead the way by implementing effective employment policies and practices that increase opportunities and help workers achieve their full potential. We must also rededicate ourselves to fostering an inclusive work culture that welcomes the skills and talents of all qualified employees. That’s why I’ve asked the responsible agencies to develop new plans and policies to help increase employment across America for people with disabilities."

The following are some of the steps the Obama Administration will take:

• The Office of Personnel Management (OPM) and Department of Labor's Office of Disability Employment Policy (ODEP) will collaborate to sponsor and organize a day long Federal Government-wide job fair for people with disabilities. The Fair will take place in early spring 2010. In addition to the Job Fair, OPM, ODEP, the Equal Employment Opportunity Commission (EEOC) and the Department of Defense's office on Computer and Electronic Accommodations Program (CAP) will provide workshops throughout the day on a variety of topics including the Schedule A hiring waiver and the right to the provision of reasonable accommodations including information on assistive and communications technology.  

• OPM will develop training on Schedule A for federal Human Resources specialists, hiring managers and selective placement coordinators that will be easily accessible and includes on-line training.
  
  
• EEOC and the Department of Justice's Civil Rights Division will hold four Town Hall meetings throughout the nation to share information about the ADA Amendments Act proposed regulations and to gather comments on them. All Town Hall meetings will consist of two sessions – one for disability advocates and one for the employer community. These sessions will be completed by November 20th. The four locations are Philadelphia, Chicago, San Francisco and New Orleans.

• The Department of Justice will release a video that will identify and respond to a number of common myths held by employers about workers with disabilities.

• OPM will create and lead a task force comprised of representatives from key Federal Departments and Agencies that have developed and implemented model practices for recruiting, retaining and advancing employees with disabilities. The task force will report on the innovative practices agencies use to encourage the employment of individuals with disabilities. The report will identify and promote successful practices for conducting outreach, recruiting, hiring qualified candidates, successful accommodations, and providing opportunities for career advancement at all levels.

Source: www.whitehouse.gov press release dated 10/5/09.

Court considers employee's charge of FMLA confidentiality violation

Yatana Walker filed suit against Donna Gambrell, her supervisor, claiming that Gambrell interfered with her FMLA rights by improperly disclosing information related to her medical condition and interference with her FMLA rights. In its ruling, the court considered both FMLA and ADA confidentiality provisions.

Walker had suffered a miscarriage and had her husband contact a co-worker when she was unable to come to work. The co-worker became very emotional when conveying the information to Gambrell, who informed her staff of Walker's situation in an effort to explain the co-worker's emotional state. Walker subsequently applied for, and was granted, FMLA leave during her recovery period. 

Upon learning of the disclosure, Walker filed suit citing that the FMLA required that records and documents relating to medical histories of employees created for FMLA purposes must be maintained as confidential records in accordance with the ADA. The court disagreed, finding that Walker did not state a claim. The disclosure was not made for the purpose of documenting or maintaining an FMLA file.

Moreover the ADA confidentiality provisions apply only to information secured as the result of an employer-requested medical examination or other employer inquiry. The information at issue was the result of Walker's voluntary disclosure. Further, Walker provided no evidence that her FMLA rights were interfered with or that she was retaliated against for exercising them. Gambrell advised her to take as much time off as she needed, and Walker was granted FMLA leave despite the disclosure. Even if she could prove the disclosure violated the Act, she could not prove that it was made willfully or intentionally. (Group Benefits Law Department, The Hartford)

Employee challenges employer's request for second opinion evaluation in stress case

Prior to his death, Lawrence Chapen filed suit against his employer, State of Nevada Department of Conservation and Natural Resources, and six individuals for interference with his FMLA rights.

Lawrence Chapen alleged that after providing the State with a medical certification from a health care provider requesting FMLA leave, the State requested a second opinion. Chapen asserted that this violated his FMLA rights because the health care provider selected for the second opinion would ignore the "etiology of the stress" Chapen suffered and would reach a different conclusion than that of his initial medical certification.

Chapen alleged he was therefore placed in a "Catch 22" and felt "compelled to resign." The State argued that there was neither adverse treatment nor a retaliatory motive with regard to Chapen's request for FMLA leave and the subsequent decision to seek a second opinion. The court noted that the FMLA allows an employer who has reason to doubt the validity of a medical certification to obtain a second opinion at the employer's request. Chapen's refusal to see the health care provider chosen was a refusal on his part to act in good faith. 

According to the State, Chapen's termination followed his refusal to submit to a lawful request for a second opinion evaluation. The court found that Chapen's refusal to consent to a second opinion was not a protected activity under the FMLA, nor was such a request by the State unlawful. For the reasons stated, the court granted the State's motion to dismiss. (Group Benefits Law Department, The Hartford)

Court cites ADA definition of disability in ruling on validity of leave request

In Voyles v. Lane Furniture, Cheri Voyles alleged that Lane interfered and retaliated against her for exercising her FMLA rights. Voyles’ adult daughter experienced a difficult pregnancy that resulted in her being hospitalized several times before she gave birth four weeks prematurely on July 30, 2007. She was discharged on August 3, with no restrictions except not to drive for two weeks.

On either July 31 or August 1, 2007, Voyles requested FMLA leave to care for her daughter. She was informed on August 3 that she was not entitled to FMLA leave and her request to take personal leave without pay was denied. With the permission of her supervisor, Voyles left work early that day to assist her daughter. Voyles did not return to work and on August 9, her employment was terminated. Voyles contended that she requested FMLA due to her daughter's difficult pregnancy. However, her request was not made until the day her daughter was discharged from the hospital following a normal delivery.

The court looked to the ADA definition of "mental or physical disability" in order to decide whether or not Voyles's daughter, who was over the age of 18, was "incapable of self-care because of a mental or physical disability." The ADA defines a physical disability as "an impairment that substantially limits one or more of the major life activities." The EEOC regulations further define major life activities as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 

While the list is not exhaustive, the court found that driving was absent from the list and was "conspicuously different in character from the activities that are listed." Accordingly, the court found that Voyles failed to prove that her adult daughter was incapable of self-care due to a physical disability following her discharge from the hospital and granted Lane's request for summary judgment. (Group Benefits Law Department, The Hartford)

Decision: FMLA does not require an employer to retain an employee who cannot perform essential functions of job

In the case of Charlene Wisbey v. City of Lincoln, Nebraska, the court was asked to determine if the employee’s FMLA rights were violated when she was asked to undergo a fitness for duty exam for her job as an emergency dispatcher.

In February 2007, Charlene Wisbey was granted FMLA intermittent leave for six months because of her chronic anxiety, depression and problems with concentration and energy level. Wisbey's treating psychiatrist completed a medical certification that stated Wisbey's medical condition interfered with her sleep, energy level and concentration. Upon reviewing the medical certification, Wisbey's management became concerned with her ability to perform her emergency dispatcher duties because they required a high level of concentration in order to make necessary "split second" decisions.

Wisbey's employer, the City of Lincoln, Nebraska, determined that a fitness for duty exam was warranted and required Wisbey to undergo a psychiatric evaluation. As a result of that examination, the doctor determined that Wisbey's depression, together with her fatigue and inability to concentrate, rendered her unfit to perform the essential functions of her job. Wisbey was placed on a paid administrative leave beginning March 29, 2007 until her employment was terminated on April 3, 2007.

Wisbey filed suit alleging that the city terminated her in violation of the FMLA and ADA. As to her claims of FMLA violation, Wisbey argued that the city disciplined her for exercising her right to FMLA leave and unlawfully retaliated against her by requiring a fitness for duty exam and ultimately terminating her employment.

The court ruled in favor of the city on both claims. With respect to her FMLA claims, the court found that she was not terminated for requesting FMLA leave, but as a result of the medical information contained within the request and the fitness for duty exam, both of which indicated she could not perform her job. 

As noted by the court, the FMLA does not require an employer to retain an employee who cannot perform the essential functions of her job. Additionally, the court found that the fitness for duty examination was job related and consistent with business necessity, it comported with the terms of the ADA, and the FMLA is not violated when, in accordance with the ADA, the employer requires an employee to undergo a fitness for duty exam. (Group Benefits Law Department, The Hartford)