DOL publishes answers about employee hours, pay reductions
The Department of Labor’s (DOL) Wage & Hour Division has published a list of frequently asked questions about furloughs and other reductions in pay and hours. The beginning point under the Fair Labor Standards Act (FLSA) is that employers are required to pay all non-exempt employees the full minimum wage and any overtime on the regularly scheduled pay date for a particular work week. Although an employer must pay non-exempt employees for all hours worked, employers legally may lower workers’ hourly rates so long as the rate matches at least the minimum wage.
An employer must pay an exempt employee the full predetermined salary for any week during which the employee performs any work, regardless of the number of days or hours worked. However, the Wage-Hour law does not require that the salary be paid if the employee does not work for an entire work week.
An employer is allowed to make prospective reductions in pay for a salaried exempt employee due to an economic downturn, provided the purpose of the reduction is to meet long-term business needs. Short-term, day-to-day or week-to-week deductions from a fixed salary based on operating requirements of the business are not permissible, and would result in the loss of the wage-hour exemption.
Wellness programs and employee health risk assessment
Published reports indicate there are a number of employers that “swear by” employee wellness programs. For example, officials at Con-Way Freight report getting back about $1.6 for each $1 that it is invested in such programs. Con-Way has reportedly seen a drop of about 20 percent in workers’ compensation costs at terminals that have had at least one wellness coach on site overseeing the program for at least a year. In addition, such terminals have fewer absences and higher productivity among other benefits.
Employees at Con-Way are made aware their wellness coach will be onsite at scheduled times and will make an effort to start general health-related dialogues with employees. Con-Way also offers drivers telephone or Web-based communications sessions with coaches. Programs began with an initial health assessment.
Perhaps because more employers are using health assessments, on Aug. 10, 2009, the Equal Employment Opportunity Commission (EEOC) issued an opinion letter on the subject. The opinion concludes that an employer’s “requirement” that all employees complete a health risk assessment to participate in an employer-funded health reimbursement arrangement, likely violates the Americans with Disabilities Act (ADA). The opinion states that employers may ask only disability-related questions and require employees to undergo medical examinations if job-related and consistent with business necessity. These actions are also permitted where they are a follow-up to an employee’s request for a reasonable accommodation, in specific medical circumstances such as periodic medical examinations for positions affecting public safety, or if part of a “voluntary” wellness program. Further, other circumstances may arise involving a particular employee who cannot perform his or her job, to determine whether he or she will face a direct threat because of a medical condition.
The health assessment addressed in the opinion letter required employees to answer over 100 questions in various categories, such as family health history, self care, personal health, women’s health, older adult health, nutrition choices, physical activity and alcohol and tobacco use. The opinion letter states:
Although the Commission has not yet taken a formal position on the question you have asked, requiring employees to complete a health risk assessment that includes many disability-related inquires — such as questions about how often they feel depressed; whether they ever have been told that they have certain conditions, such as asthma, cancer, heart disease, or diabetes; how many different prescription medications they currently take; or how much alcohol they consume — as a prerequisite to obtaining reimbursement for health expenses does not appear to be job-related and consistent with business necessity.
The letter goes on to state that many questions in the assessment are not disability-related and may be asked of employees. These include questions such as whether the employee sees a personal physician for routine care or has a health care directive, how many servings of fruit and vegetables the employee eats, whether the employee takes vitamin supplements, whether the employee eats breakfast, and how much the employee exercises. Such questions “are not likely to elicit information about a disability and, therefore, are not subject to the ADA’s restrictions.”
Lastly, the letter addresses the issue about the health risk assessment being part of a wellness program.
“Finally, even if the health risk assessment could be considered part of a wellness program, it is not voluntary because it penalizes any employee who does not complete the questionnaire by making him or her ineligible to receive reimbursement for health expenses.”
Jerome Pinn is an attorney in the Knoxville office of Wimberly, Lawson Seale & Daves. He welcomes your comments on this topic or other employment law issues, and can be reached at (865)546-1000.
