Recently, I posed the following question to several of the professional groups I’m involved with though Linkedin. “When just a few, normally uninsurable lives can blow up your group health rates - what can you legally ask or do (when hiring) to better your chances of a healthy hire?”
Here are some of the responses I’ve received:
When it comes to new hires absolutely nothing! I wish I had a different answer and honestly
to protect myself I as a business owner I would disclose and inform my potential new hire that I was
recording every interview to minimize my exposure to a
discrimination lawsuit - in this ridiculous litigous world we live in.
Howard Forman – Owner of PEO Source
I somewhat agree with H. Forman’s first sentence. Essentially, what you’re saying [how can I skirt the fed'l and state anti-discrimination laws?] The main ones you need to watch out for on the fed’l level are ADA, ADEA, Title VII and Pregancy Discrimination Act. On the state level you are likely to have similar statutes plus, “familial status” and “legal product use” protections (e.g., smoker’s rights.)
In my experience, however, the answer is seldom to tell a client they cannot do something but instead tell them what they can do that may achieve their goals and still be in compliance. So what can you do?
You can ask questions about job performance–as they relate to the job being applied for–that may indicate likelihood of performance issues. Some of those questions will by natural (and compliant) selection eliminate some candidates that might be in a higher risk category.
E.g., Assuming the job requires stability in attendance: You might ask, “This job requires you to work 8-5, M-F and doesn’t have the ability to offer much flexibility or time away. Will you be able to keep this type of schedule? Would your previous employers recommend you for this position?” Follow this with a good reference check.
An applicant with issues that would be impacted might answer in a less positive way. Of course, any answer must be considered in light of applicable laws. Simply because someone opens the door doesn’t mean the ER can walk through it. If protected issues are disclosed the ER will be responsible for having that knowledge.
An applicant with a health issue for example is still entitled to any applicable ADA protections. The bottom line is if that is a BFOQ and the person is unqualified to meet it w/ or w/o reasonable accommodation then you could pass on them. This is not fool proof as some health issues may be related to family members or not impact attendance.
Another thing you might do is review state laws on use of tobacco products. Some states do not protect tobacco users, which are much higher levels of risk. Even in states with smoker’s protections you can often implement tobacco free workplaces.
These are not w/o risk. The ER should consider the risk they take on if someone discloses information that might be protected versus the reward they face by eliminating potential insurance risks. Still giving clients some options makes you a partner in their success instead of an impediment.
-Timothy Koirtyohann, Director of Human Resources at Cardiovascular Home Care
Are you talking about underwriting a group before enrolling them in a large group peo plan?
or how to avoid hiring sick people into a large group plan after it is set up and running?
In the first case, health questionnaire’s are a good line of defence, however, once a client is signed on, you have an agency problem.
The business owner may be happy to hire on a person with a chronic condition thinking that 1. That person will be a grateful and loyal employee less likely to jump to other jobs. and 2. The PEO health plan is there to be used, so what does he (or she) care about the profits of the ‘evil’ health plan.
Following that there are of course all of the laws forbidding discrimination….
Tough problem to solve…
Michael Speizman – Owner of Employee Leasing Marketplace
Mike,
I fight the health insurance battle for my clients daily. Americare or “Medicare For All” is the only real solution, and it’s available now. Medicare supplement policies can fill in the holes of a good basic health plan, that everyone can afford to pay their fair share.
Lower administration costs, paired with private insurance carriers providing group medicare plans who can’t cherry pick consumers or businesses. Both sides win.
Think about it. If we have “Medicare For All”. Then all you need is higher contributions to Social Security for lost wages, and we can get rid of workers compensation coverage as well.
Would employers pay an increased payroll tax of 6% to rid them of Health Insurance and Workers Compensation? I think most, if not all business owners, would jump at the opportunity…. if given the option.
Bruce Sliver, Founder of HRO/PEO Employers RX LLC