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EEOC Proposes New Workplace Anti-Harassment Guidance

The Equal Employment Opportunity Commission has issued proposed language to update its guidance on harassment in the workplace.

The proposed guidance “reflects notable changes in law, including the Supreme Court’s 2020 decision in Bostock vs. Clayton County (which held that LGBTQ individuals are protected from workplace discrimination under Title VII), the #MeToo movement and emerging issues, such as virtual or online harassment,” the EEOC wrote in its introduction to the proposed guidance.

The agency polices discrimination in American workplaces, and harassment falls under that banner. Between 2018 and 2022, 35% of the charges of employment discrimination filed included an allegation of harassment based on race, color, national origin, religion, sex (including pregnancy, sexual orientation and transgender status), age, disability or genetic information.

Employers should read the guidance to understand the many forms of harassment — and in particular harassment against any LGBTQ workers, since they are the most recent group to receive protected status.

LGBTQ harassment

The Bostock ruling found that harassment based on sexual orientation and gender identity, including how identity is expressed, constitutes sex-based discrimination. According to the EEOC, guidance this type of harassment can manifest in the workplace via:

  • Physical assault;
  • Epithets regarding sexual orientation or gender identity;
  • The denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity;
  • Intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (which is known as “misgendering”); or
  • Harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender.

The guidance provides examples that illustrate the many nuances of harassment.

In its guidance, the EEOC cites the following example of indirect LGBTQ harassment:

Keith and his colleagues work in an open-cubicle style office environment, and they frequently make derogatory comments about gay men and lesbians.

“Horatio, who is gay, overhears the comments on a regular basis and is offended by them, even though they are not directed at him.  

“Based on these facts, the conduct is facially discriminatory and subjects Horatio to harassment based on sexual orientation (which is a form of sex-based harassment), even though he was not specifically targeted by the comments.”

It also offered this example of harassment based on gender identity from a case in Philadelphia:

“Jennifer, a cashier at a fast food restaurant who identifies as female, alleges that supervisors, coworkers, and customers regularly and intentionally misgender her.

“One of her supervisors, Allison, frequently uses Jennifer’s prior male name, male pronouns, and “dude” when referring to Jennifer, despite Jennifer’s request for Allison to use her correct name and pronouns; other managers also intentionally refer to Jennifer as “he.”

“Coworkers have asked Jennifer questions about her sexual orientation … and asserted that she was not female. Customers also have intentionally misgendered Jennifer and made threatening statements to her, but her supervisors did not address the harassment and instead reassigned her to duties outside of the view of customers.

“Based on these facts, Jennifer has alleged harassment based on her gender identity.

What you can do

The EEOC recommends that employers create an effective anti-harassment policy, which is widely disseminated, and that:

  • Defines what conduct is prohibited.
  • Requires that supervisors report harassment when they become aware of it.
  • Offers multiple reporting avenues for an employee, during both work hours and other times (weekends or evenings).
  • Identifies accessible points of contact to report harassment (complete with contact information).
  • Explains the employer’s complaint process, including the ability to bypass a supervisor, along with anti-retaliation and confidentiality protections.

For an employer’s complaint process to be effective, at a minimum, it should provide:

  • For prompt and effective investigations and corrective action;
  • Adequate confidentiality protections; and
  • Adequate anti-retaliation protections.

The final step in it all is training your employees and supervisors on your anti-discrimination and harassment policy. You can use the EEOC guidance to provide examples of harassment and provide information about your employees’ rights if they experience workplace harassment.

Supervisors and managers should receive additional training, including the importance of taking complaints seriously and not retaliating against anyone who makes a complaint.


Family Coverage Costs Hit Small-Business Workers Hardest: Study

A new study has found that most employer-sponsored family health plans are increasingly unaffordable for workers due to rising costs and them footing a significant part of the premium, even with employer assistance.

Workers at smaller firms, defined as those with fewer than 200 employees, are especially affected as they typically have to pay a larger share of the family coverage premium than their large-employer counterparts (38% vs. 25%), according to the 2023 Kaiser Family Foundation “Employer Health Benefits Survey.”

The amount workers at small firms pay for single-only coverage is comparable to what their counterparts at larger firms pay (17% of the premium vs. 18%).

While family-plan premiums are similar for workers in small and large firms ($23,621 compared to $24,104 on average), due to the higher percentage cost-sharing, employees in small firms are paying significantly more for their share of the premium ($8,334 per year vs. $5,889 at larger firms), according to KFF. Moreover, 25% of workers at small firms pay over $12,000 yearly for family coverage, excluding deductibles that are also often higher.

For low-wage workers that’s a tall order, made worse by the fact that those at small employers typically earn less (an average of $44,600 a year vs. $63,200 for workers at larger firms).

On top of higher premium layouts, workers in small firms may also pay higher deductibles and have higher out-of-pocket medical costs:

  • About 59% of employees in small firms have a family-plan deductible of at least $3,000 before the plan will start covering most services.
  • Some 34% of workers in small firms have a family-plan deductible of at least $5,000, and it may be higher if multiple family members have to spend towards the deductible during the plan year.

What small firms can do

While small employers really can’t do anything about rising group health plan costs, they can take steps to ease their employees’ premium obligations and out-of-pocket costs:

Assume more of the premium — If it’s within their budget, they can increase the amount of family coverage premium they will cover. This is not something that is feasible for many companies, but for those who are interested in attracting and retaining talent who have their own families, they may need to.

Offer more plans with narrow networks— Narrow networks do reduce premiums, and that’s a huge draw for both employers and their employees. But consumers also benefit from these plans through lower overall out-of-pocket expenses.

Narrow networks contain longer-term costs by encouraging individuals to develop a relationship with their primary care providers. Cost savings come from increased use of PCPs and decreased, or more-efficient, use of specialists.

These plans provide a way to contain costs without sacrificing care, but because they’re comprised of local, community-based medical providers they’re best for a workforce that works at a single location and therefore lives within proximity to the job site/office.

Offer high-deductible health plans — A high-deductible plan’s upfront costs are less expensive than a preferred provider organization or health maintenance organization. According to KFF, the average HDHP family coverage costs $22,344 a year, nearly $3,000 less per than a PPO plan and nearly $1,500 less than an HMO.

With that lower premium, employees can set aside additional funds into an attached health savings account, a tax-benefited vehicle that is funded through pre-tax payroll deductions. HSA funds can be used to reimburse for health care expenses, including those towards deductibles.


Employers Wrestling with Covering Weight-Loss Drugs

The explosion in demand for new, costly and highly effective weight-loss and diabetes drugs is poised to play an outsized role in increasing the cost of health care, and in turn, health insurance in America.

These groundbreaking drugs — the most popular sold under the brand names Mounjaro, Ozempic and Wegovy — are partly to blame for overall pharmaceutical benefit costs jumping 8.3% in 2023, compared to an increase of 6.4% in 2022, according to a report by Mercer.

The effects are amplified because of the high cost of these drugs — around $1,000 a month — as well as the growing legion of patients being prescribed them.

On the other hand, these GLIP-1 drugs, as they are known, show great promise in helping tackle the obesity epidemic in the country, which contributes significantly to medical costs.

They were originally designed to treat diabetes, but they had a surprising benefit: weight loss, sometimes so significant that patients’ glucose levels dropped below diabetic levels, and the medications are now being prescribed for weight loss in patients without diabetes.

Employers and insurers are now faced with the prospect of exploding drug costs if demand continues to boom and doctors write more prescriptions for them. To head that prospect off, they are trying to formulate approaches that could keep costs from spiraling while still attending to the demand for weight-loss regimens.

Booming demand

While Novo Nordisk A/S’s Ozempic and Wegovy have been on the market for some time for treating diabetes, the latter has been approved to treat obesity using smaller doses. While Ozempic has not been approved for weight loss, doctors commonly use it off-label for weight loss as well.

In November 2023, Eli Lilly & Co. won clearance from the U.S. Food and Drug Administration for its new drug called Zepbound — a version of its diabetes drug Mounjaro — to be used to treat obesity.

People who take these medications can see dramatic weight loss, which has spurred a surge in prescriptions. In 2022, 5 million GLP-1 prescriptions were written, a 2,082% increase from 2019. The market for these drugs is expected to grow to between $100 billion and $200 billion a year within the next decade.

The manufacturers have been struggling to keep up with demand, with Novo Nordisk saying it will take two years to build up production capacity to meet demand. As it does that, it has limited the availability of lower starting doses of Wegovy as it prioritizes a continuous supply of the pharmaceutical for people who already use it.

One of the biggest challenges with these drugs is that people who stop taking GLP-1 drugs regain most, if not all, of the weight they lost. That may require a lifetime commitment to taking these medications for some individuals. Also, many people stop taking these drugs because they say they have no longer derive pleasure from eating, rendering dining a boring experience.

What employers and payers can do

While employers cover the use of GLP-1 drugs as a treatment for diabetes, the story changes when covering them for treating obesity.

The list prices for the drugs — before any copays or coinsurance — range from $936 per month to about $1,350.

GLP-1 drugs are already recommended for treating certain high-risk type 2 diabetes cases, the majority of which are due to obesity. It’s likely that many individuals with type 2 diabetes will end up on a GLP-1 drug at some point anyway.

Mercer’s “National Survey of Employer-Sponsored Health Plans 2023” survey of employers with 500 or more workers found that:

  • 35% cover GLP-1 drugs for treating obesity with prior authorization and/or reauthorization requirements.
  • 7% said they cover the drug with no special requirements.
  • 19% said they don’t cover these drugs but are considering it.
  • 40% said they are not considering covering these medications.

According to the Mercer report, some employers have reversed previous coverage of GLP-1 drugs for obesity after utilization spiked, saddling their health plans with a surge in pharmaceutical costs.

For employers who want their plans to cover GLP-1 drugs but need to cap their health care costs, experts recommend a step program for people struggling with obesity as it can help patients lose weight at a lower cost: 

Step one — Focuses on helping the patient change their lifestyle through dietary changes and exercise.

Step two — Focuses on education and ancillary services, such as food delivery or mental health support.

Step three — If they still need help, doctors can prescribe first-generation anti-obesity medications, which are less expensive and often generate satisfactory weight loss.

Step four — If all else fails, doctors prescribe GLP-1s if the plan covers them, fully or partially.

Mercer also recommends that for individuals who have achieved their desired weight loss and health improvements through GLP-1 drugs, physicians may want to consider tapering them off them at some point, while focusing on sustaining the weight loss and improved health through adhering to lifestyle changes.