Many older employees now plan to work years past the traditional retirement age to recoup lost savings. And as the age of your workforce increases, so do workers’ health problems. Two ways to keep costs under control:

1. Plan for their future

As employees age, health factors can become an ever-increasing barrier to productivity.

So the sooner you introduce your employees to wellness programs, the more productive they’ll be in their later years.

Employers with well-established wellness programs are seeing lower rates of diabetes and heart disease among their older workers than other comparable organizations’ 40-and-over employees.

2. Tell them to speak up

Older workers are less likely to suffer workplace injury (usually because they are taken off the front line and given safer jobs). But when they do get hurt, they recover slower, create costlier claims and are less likely to return to work.

That means employers must place a heavy emphasis on early identification and intervention. Encourage employees to seek treatment as soon as any symptoms of injury or illness are discovered.

The key to getting workers to take action: Assure them they won’t be discriminated against when they become ill.

One thing to be aware of: Shortly after getting this message of prevention out to workers, odds are the level of reported injuries and illnesses will increase. But don’t worry, this trend will reverse itself in time.

Here’s an easy recipe for a lawsuit: A manager sees a resume and likes the candidate’s qualifications — but after meeting the applicant in person, immediately changes his mind.

That happened in one recent case.

An employee applied online for a job at a debt collection agency. She had eight years of relevant experience, and the hiring manager liked her qualifications enough to invite her in for an interview.

But once the candidate met the manager in person, she was immediately turned down for the job. Why? Apparently because she was blind.

According to the candidate, once the manager realized she was blind, he told her, “This isn’t going to work out,” and sent her on her way.

The woman tried to explain that she’d spent eight years doing similar work for eight years with the help of assistive technology for the blind, but again the manager told her she wouldn’t be considered for the job.

She took her complaints to the EEOC, which helped her sue. She won a $55,000 settlement.

This case highlights the need to train managers on disability discrimination while recruiting. Advances in technology have made it possible to accommodate more qualified employees than ever — and at a lower cost. According to a recent study by the Job Accommodation Network, 56% of accommodations cost nothing at all, while another 37% involve only a small, one-time cost ($600 on average).

As this case shows, failing to explore those options can create big legal problems — but that’s not all. As the EEOC’s lawyer in the case noted, the candidate had been successful performing similar work in the past, and company missed out on her skills and expertise.

Cite: EEOC v. Sentry Credit, Inc.

Sure, you pay a lot for employees with cancer and heart disease. But those aren’t the ones who cost employers the most in healthcare coverage.

A major study in the Journal of Occupational and Environmental Medicine found these are the five most expensive health conditions on a dollar-for-dollar basis:

• depression
• obesity
• back and neck pain
• arthritis, and
• anxiety.

Where some companies miss the mark

Odds are when tracking your company’s healthcare costs, you primarily consider factors such as:

• single and family coverage premiums
• doctor and hospital costs
• prescription drug costs
• the cost of wellness and/or employee assistance programs (EAPs), and
• absenteeism or disability costs.

And when companies look solely at these factors, cancer and heart disease do appear to cost employers the most money each year.

But when it comes to chronic problems, the study found that employees who are in poor health, but not sick enough to miss work, cost employers significantly more.

How much more?

For every $1 spent on doctor and drug expenses for the chronically ill, the study found companies lose $2.30 in lost productivity for the ones who come into work when they are in poor health.

The study also revealed that wellness programs, EAPs and disease management programs pay for themselves in helping contain indirect costs and long-term direct costs.

Answer True or False to the following (answers below):

1. If you supervise a disabled employee who can’t meet production standards for that position, the law calls for you to lower the standards for that person.

2. The Americans with Disabilities Act applies only to companies that have at least 15 employees.

3. Employees who abuse drugs are generally not protected by the ADA.

4. Employers are required to provide disabled employees with aids such as eyeglasses, hearing aids and the like.

Answers

1. False. The law calls for you to provide practical and reasonable accommodations to help the employee meet the general standards, but you are not required to lower standards.

2. True. The law recognizes that ADA accommodations might present too big a burden on small employers who have less flexibility.

3. True. Bans against and penalties for drug abuse can be fully enforced by supervisors and employers, and are not affected by the ADA. The one exception is if an employee enters a rehabilitation program and asks for help. Still, even if an employee is in rehab, you can discipline the employee for subsequent instances of abuse.

4. False. Employers are required to make accommodations in some instances, such as a chair, but generally aren’t required to supply healthcare “personal use” items.

A nurse was let go after doctors repeatedly complained she had trouble hearing their instructions. The woman wore hearing aides in both ears, but that didn’t help the predicament.

She was placed in another position temporarily and told she could look for another job in the hospital. Instead, she quit and sued the hospital for disability discrimination.

Apparently, the woman told the doctors about an easy way to fix the communication issue: All they had to do was stop listening to loud music in the operating room.

According to the EEOC, who took up the case, such a simple accommodation shouldn’t have a problem. The employer couldn’t get the case thrown out, and ended up settling for $100,000.

Cite: EEOC and Reherman v. St. John Health System

An Illinois man filed for a disability pension, claiming he was unable to do any work — and then he turned around and sued his employer for failing to accommodate his disability.

Tried to double dip

Here’s what happened: A police officer developed chronic obstructive pulmonary disease, a condition that makes breathing difficult.

His doctor cleared him for light duty, but no such positions were available. So the officer applied for a disability pension.

During a hearing, the man testified that his condition made it impossible to fulfill a police officer’s normal duties — “chasing a suspect or wrestling with an unruly one.”

Result: He was granted the pension.

But then he sued the department under the Americans with Disabilities Act (ADA), claiming it should’ve accommodated his disability by putting him on light duty.

The court wasn’t impressed. Taking his hearing testimony at face value (remember when he said he couldn’t fulfill an officer’s normal duties), the judge said, there was no way the man could do the job — with or without an accommodation.

Can’t claim one thing in one hearing and then deny it in another, the court ruled. So it dismissed the ADA suit.

Cite: Butler v. Village of Round Lake

The facts:

An employee who was being treated for cancer suffered from dry mouth and throat as a side effect of the treatment, and had to consume large amounts of water throughout the day to combat the side effect.

As a result, she asked for two disability accommodations:

• Relaxing of a rule that prohibited drinks of any kind at workstations.
• Permission to leave the workstation often, and without asking, because of a frequent need to use the restroom.

She was granted both accommodations, and worked under those conditions for several months without incident except for one time:  A substitute boss who hadn’t been informed of the employee’s condition refused to all the employee to leave the workstation during an especially busy period. The employee wet her pants.

The employee sued for denial of a disability accommodation.

The employee said:
The temporary supervisor’s blunder caused extreme embarrassment, besides being an illegal breach of the agreement to grant her the accommodation.

The employer said:
The employee had worked under the accommodation conditions for several months without a hitch — in that the regular supervisor had never once denied the employee the accommodation. The incident in question was a simple mistake in communication, in that the temp supervisor wasn’t aware of the accommodation, and would have granted it had he been aware. Further, the employer maintained, the employee should have informed the boss of the accommodation or should have just left the workstation to use the restroom.

Who won the case?

Answer: The employee, who received $200,000 in damages from the employer.

Why: The court rejected the employer’s argument on two counts –

• The employee was under no obligation to inform the boss of the accommodation. The legal language for such an event is called continuing the “interactive process” — the back and forth between employee and supervisor to arrive at a reasonable accommodation. The court said the employee had already engaged in the interactive process and was under no obligation to continue it with another supervisor once the accommodation had been granted.
• Even a single incident of failure to accommodate can have more-than-trivial consequences. An employer must be vigilant about maintaining the accommodation at all times. In short, someone should have informed the temp supervisor about the situation.

Cite: A.M v. Albertsons LLC.

A truck driver applied for a job with a transportation company. During the interview, the hiring manager noticed the applicant had a prosthetic leg. Believing he couldn’t drive a truck safely, the managers didn’t offer him the job.

But despite his impairment, the applicant had a commercial driver’s license from the Department of Transportation, as well as several years of experience as a truck driver.

He sued, claiming disability discrimination.

The company tried to fight the claim but was unsuccessful and ended up settling for $56,500.

The lesson for managers: Don’t make assumptions about disabled applicants. You’re allowed to find out if someone can safely do the job — you don’t need to resort to discrimination.

Cite: EEOC v. KLLM Transport, Inc.

The scene:

“You know demoting Marty is going to present a little problem, right?” HR manager Diane Corsey said.

“You mean because of his cerebral palsy?” Darlene asked.

“I’m not saying you can’t or shouldn’t demote him,” Diane noted. “I just want to be sure it’s not because of his disability.”

“This is not about his disability,” Darlene affirmed. “It’s about his performance. It takes him forever to get anything done. He’s had warnings, and there’s been no improvement. In fact, it it wasn’t for his disability, I’d probably recommend firing him.”

“Have you talked to him about any accommodations we might make that would make the job a little easier for him?” Diane asked.

“No, because he hasn’t asked about accommodations,” Darlene said. “We talked about this when we hired him – that the law didn’t obligate us to offer him help if he didn’t ask for it. He’s pretty stubborn about being independent, you know.”

First move
“I know,” Diane agreed. “Still, I wonder whether we should make the first move on that.”

Darlene went through with the demotion, and Marty ended up quitting – and suing for disability discrimination. The company said Marty never asked for an accommodation, so the supervisor had gone by the book.

Did the company win? (Answer below.)

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Answer:

No, the company lost.

The HR manager and the supervisor had interpreted the law almost perfectly, the judge noted in the decision. Almost.

The Americans with Disabilities Act does state that in most cases, the employee is required to request a disability accommodation from the employer.

This was the exception, however.

When an employee’s disability is so obvious and the employee’s performance is below standards, the responsibility falls on the supervisor to approach the employee and suggest an accommodation for the disability.

Of course, the employee isn’t required to accept an accommodation, and in that instance the matter is closed. But for obvious disabilities, the supervisor must make the first move and ask.

Don’t ignore the obvious
The lesson here is that you just can’t ignore the obvious.

Being aware of the problem, the supervisor could have approached the employee and made a suggestion, especially because the employee was struggling with performance.

Broaching a subject like that can be difficult, but if you keep it performance-related, you’re on safe legal ground.

[Based on: Brady v. Wal-Mart Stores, Inc.]

More evidence that it pays to emphasize weight loss in your wellness programs:

In two separate cases, courts ruled that workers’ comp must cover weight-loss surgery.

Surgery to ease back pain

The first case involved Adam Childers. While working at Boston’s Gourmet Pizza in Indiana, Childers was struck by a freezer door, injuring his lower back. At the time, Childers weighed 340 pounds.

Doctors said Childers needed surgery to ease his back pain, but that the operation would do him no good unless he first had surgery to reduce his weight, which had ballooned to 380 pounds after the accident.

Childers’ employer agreed to pay for the back surgery, and later a workers’ comp panel said it’d also have to pay $20,000 to $25,000 for his weight-loss surgery (plus disability payments while he was unable to work). His employer appealed, arguing that Childers suffered from a pre-existing health condition — morbid obesity.

However, the court said the restaurant couldn’t prove that Childers’ weight had been a medical problem before the accident. Case closed, he gets the surgery paid for by comp.

Surgery to help arthritic knee

In the second case, Edward Sprague injured his knee in 1976 while working as a mechanic. He then reinjured it in 1999 while working at United States Bakery in Oregon.

During those 23 years, Sprague’s weight climbed from 225 to 350 pounds.

Doctors told Sprague his weight would prevent successful treatment of his arthritic knee condition, so he sought workers’ comp benefits for weight-loss surgery.

A state court ruled Sprague’s bypass surgery should be covered by workers’ comp because the operation was necessary to treat an on-the-job injury.

What can you do?

Most people gain weight as they age — and studies show that heavier employees are at much greater risk for on-the-job injuries.

That’s why companies of all stripes have found wellness programs to more than pay for themselves by preventing injuries and other medical claims.

Group weight-loss initiatives help by making the process fun and competitive. So does replacing high-calorie snacks in vending machines with healthier — but popular — choices.