Yes — if the employer sponsors the activity, said a New York appellate court in a recent workers’ comp case.

What happened

Frank Torre worked for Logic Technology, a company that performed on-site contracting work for General Electric.

Torre suffered a spinal cord injury while participating in an exercise class at the General Electric fitness center during work hours. He claimed workers’ comp should pay for it.

The court agreed. Although it found that Torre’s employer didn’t require him to participate or compensate him for taking the class, it did pay a portion of his membership fee.

Also, Torre’s job required him to develop contacts with current and prospective clients. And Logic Technology’s president stated that participating in the class would help him develop those contacts.

Result: The court ruled that his injury arose out of, and in the course of, his employment.

What the law says

New York follows this general rule: Employees cannot collect workers’ comp benefits for injuries that result from their “voluntary participation in an off-duty athletic activity not constituting part of the employee’s work-related duties.”

However, there are exceptions to this rule — like if the employer sponsors the activity or requires workers to participate in it.

While this particular ruling only applies in New York, it’s something other employers should keep in mind when designing wellness programs.

Cite: Torre v. Logic Technology.

The social networking site was recently in the middle of a workers’ comp dispute. Here’s what happened:

An employee of Virginia-based airline Colgan Air filed for disability benefits after she was injured on the job. The company initially paid the benefits but became suspicious after the employee wouldn’t cooperate with efforts to find her a job she could do.

Colgan appealed the case, suspecting that photos from the employee’s recent vacation would prove the injury wasn’t as serious as she claimed. So the company looked in the place where people most often store photos and other personal information: Facebook.

The employee’s profile had been marked as private, but the court agreed the evidence would be helpful and sent a subpoena asking Facebook to hand over “all documents, electronic or otherwise, related directly or indirectly, to all activities, writings, photos, comments, e-mails, and/or postings” in the employee’s account. A $200-a-day fine for noncompliance was threatened.

Facebook refused on privacy grounds. The court eventually backed down.

The company in this case failed to round up the evidence it needed — but many other employers have successfully fought comp and other claims by using information freely made public on social networking sites.

New Heath Insurance Portability and Accountability Act (HIPAA) security breach rules mean you’ll be responsible to notify each employee affected and the Department of Health and Human Services (HHS).

The rules technically kicked in Sept. 23, but the feds say they won’t enforce them until Feb. 22.

What counts, what doesn’t

Not all the data your Benefits and HR folks collect is impacted:

• What counts: Individual info from group health, dental or vision plans; healthcare reimbursement flexible spending accounts; pharmacy benefits plans; employee assistance programs; and long-term care plans.
• What doesn’t: Info related to leave request, accommodation requests, and workers’ comp.

And while you must inform individual employees immediately whenever their health info falls into the wrong hands, you only have to report to HHS right away if more than 500 records are affected.

If less are affected, you’ll need to keep a log of what happened and report to HHS by the following March 1.

Here’s his story:

To keep a lid on our workers compensation costs, we needed an effective light-duty program.

It’s not that we had a lot of injuries, but when we had one, the worker tended to stay out for what seemed like forever.

Problem with developing light duty: Where do you start? Whenever we asked managers to give us ideas for light-duty jobs, they’d usually come back with, “I dunno.”

So we tried a different approach with them, without even mentioning “light duty.”

What would you like?
Instead of asking them for suggestions about light duty, we asked: Give us a list of tasks that you’d like to see done in your department but never have the time or people to do.

When we phrased it that way, our managers deluged us with ideas. For instance, nearly everyone said cleaning up the workplace would be great but they had neither the time nor the people.

We took those ideas and categorized them into light-duty jobs that injured workers could do. The results: Since getting the managers involved and creating light-duty jobs two years ago, we’ve cut claim amounts by 75%, which has had a great effect on our premiums, too.

(Hal Beeler, Modesto, CA)

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.

Read the facts of this real-life case and decide: Who won?

The facts:

An employee was walking in the break room when she fell near a vending machine. Though no one else was near her at the time, she claims there was paper on the floor, from overflowing garbage cans. She suffered a broken wrist, as well as back and hip pain. A week later the pain persisted and the employee filed for worker’s compensation.

The employer said:

The worker was habitually clumsy and wore shoes with high heels. It also denied there was trash on the floor at the time of the accident, and contested it should not have to provide compensation benefits for her carelessness.

Who won the case?

Answer: The employee

Why: The court ruled the employee was entitled to benefits, saying “an unexplained workplace fall arises out of the employment unless the employer presents substantial evidence to show otherwise.”

The employer can avoid responsibility by proving the worker suffered from a pre-existing physical condition that caused the injury, or that the employee’s actions were blatantly dangerous and inappropriate. Since the employer had no such evidence, the case was thrown out.

This case also shows the importance of keeping the workplace clean. Even if a messy break room wasn’t the cause of the accident, it still got the company in trouble in this case.

Cite: Vacuum Depositing v. Dever

Here’s what happened in this recent case:

A 60-year-old employee was told her job was being eliminated after 25 years of working for the employer. She started crying and got permission from her boss to take the rest of the day off.

At home, about an hour after getting the news, the woman suffered a permanently disabling heart attack. Her doctor said she’d been healthy and that the incident was caused by the stress of hearing she was losing her job.

She was awarded accidental disability benefits. The company appealed, arguing she wasn’t eligible because the injury didn’t occur as a result of her job duties.

But the court sided with the employee’s doctor.

It was undisputed that the heart attack was caused by the woman’s conversation with her boss. And since that conversation occurred “during the scope of her employment,” the heart attack was directly related to her job and the woman was eligible for disability benefits.

Cite: Retirement Board of Salem v. Contributory Retirement Appeal Board.

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Most of your company’s employees probably are honest people who wouldn’t fake an injury to collect workers compensation. Keep in mind, however, that it just takes one cheat to cause your comp bills to go up and – not incidentally – hurt the morale and productivity of good people.

The best way to stop the problem? Call it the “fear factor.” Warnings,
when they come from the right source, really do help, according to
the National Insurance Crime Bureau.

Strongest ally
Your strongest ally in this fight – if you’re not self-insured – is your insurer. It can educate and warn employees that they’re playing with fire when they fake an injury.

Consider asking a rep to come in and talk to employees about:

• how adjusters and reps get trained to pick up on red flags that are the trademarks of fraudulent claims – no need to get specific; just telling employees about the system can be enough to discourage a crook
• what happens when cheaters are caught - firing, criminal charges, restitution – and how the insurer aggressively goes after cheaters  “to keep the premiums down for honest companies and their hard-working employees like you”
• actual cases of fraud that have been uncovered – and the penalties meted out to the cheats.

First, let’s get past the old joke about the employee who, when told his company wanted him to work four days a week, said, “Gee, I’ve never worked that hard before and no one seemed to notice.”

OK, now let’s get back to reality and realize that the four-day week isn’t something new; a lot of employers adopted it in the 1970s during the first energy crunch. So we can learn some lessons from those days, and what to expect, good and bad, from switching to a four 10-hour days a week: 

• It can be dangerous. If some of your employees work with or near machinery or equipment, common sense tells you that they’ll be less alert and careful in the ninth and tenth hour of each day. And imagine what their condition is like during the last hour of the week. In the ‘70s, a lot of companies saw a rise in accidents and Workers Comp claims after instituting the four-day schedule.
  What to do: Based on safety, you can just exclude some workers from the four-day schedule. That may be tough for some workers to swallow – particularly if others are working the abbreviated schedule – but at least if you explain your reasons, you’ll have done the right thing.
• It can create dissension. Even when you give your best explanation, such as the safety reason cited above, employees are going to grumble if they don’t have access to the four-day schedule.
  What to do: Besides giving an explanation, your best bet is to classify positions, not people, as eligible for the shorter week. That is, you can asterisk certain job descriptions as “four-day eligible.” Just be sure make “eligibility” part clear – that the company is not required to grant the benefit. 
• It may not be popular. Here’s a way to an employer can dress up like Santa Claus and end up looking like Scrooge (before he met the ghosts): Grant employees a benefit they don’t want. There could be a lot of reasons employees would rather not work four 10-hour days, such as child-care issues or partners’ work schedules.
  What to do: Survey your employees about the popularity of the idea, making sure they understand that it’s just a survey, and not a done deal.

To get an idea of the impact of GINA, consider the number of lawsuits that have been filed over genetic discrimination: none. That’s right. There are no lawsuits that pop up when you search on “genetic discrimination.” So, what’s the big deal about complying with GINA?

Really, for most HR managers, there’s only one big deal. Well, maybe two, with the second affecting a small number of employers.

1. Inadvertent receipt of genetic information from healthcare providers. For example, under the ADA, after a conditional offer of employment, you can require that applicants submit to a medical examination and sign an authorization for the release of their health records. These health records almost invariably include genetic information now barred from disclosure by GINA. Then, let’s say you later terminate the employee. That employee could march into court and scream that the decision was made based on the genetic info you keep on him in your file cabinet.

What to do: revise your requests for medical records to specify that you want only nongenetic information. You’ll probably want to make similar changes to applications, health insurance forms and workers comp authorizations, too.

2, Self-insured decisions. If your company self-insures for health coverage, you’ll have to make sure you follow the GINA provisions that make it illegal to raise an individual’s premiums or deny insurance because of genetic information.

Get more info on the Genetic Information Nondiscrimination Act.