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Agencies Issue FAQs Clarifying Wellness Program and Other Health Plan Requirements Related to COVID-19 Vaccines

The DOL, Treasury Department, and HHS have jointly issued a set of FAQs that provide helpful clarifications regarding certain requirements under the CARES Act, the HIPAA nondiscrimination rules (the “Nondiscrimination Rules”), and the Affordable Care Act (the “ACA”) related to COVID-19 vaccines (“Vaccines”).  Wellness Programs under the Nondiscrimination Rules Among other items, the FAQs provide guidance under the Nondiscrimination Rules regarding an employer’s imposition of a premium discount under a wellness program for an individual’s receipt of a Vaccine. If the wellness program is itself, or is part of, a group health plan that is not otherwise exempt from the Nondiscrimination Rules, the FAQs confirm that a premium discount would constitute a “health-contingent, activity-only” wellness program that must, among other requirements, offer a “reasonable alternative standard” to qualify for the discount for individuals for whom it is unreasonably difficult due to a medical condition, or medically inadvisable, to receive the… Continue Reading

Keeping Your Wellness Program Healthy

For years, employers have used wellness programs with the hope they would help improve employees’ overall health while simultaneously reducing group health plan costs. The pandemic has presented challenges for wellness programs though, as employees have found it more difficult to meet the requirements for discounts because of lockdowns and fears of COVID-19. To address these challenges, some employers are considering modifications to their programs to allow employees to qualify for discounts if they obtain a flu or COVID-19 vaccine. Before adopting any changes, employers should use caution, as wellness programs are subject to numerous legal requirements, including requirements under the ACA, ERISA, HIPAA, and the Americans with Disabilities Act. By carefully evaluating changes and considering the myriad of legal requirements applicable to wellness programs prior to implementing any changes, plan sponsors can avoid jeopardizing the legal health of their wellness programs.  Our prior blog posts regarding wellness program compliance… Continue Reading

COVID-19 Vaccinations ?Çô Employer Requirements and Incentives

Recent guidance issued by the U.S. Equal Employment Opportunity Commission (the ?Ç£EEOC?Ç¥) addresses many common employment issues regarding COVID-19 vaccinations, including the applicability of certain federal laws such as the Americans with Disabilities Act (the ?Ç£ADA?Ç¥), the Genetic Information Nondiscrimination Act, and Title VII of the of the Civil Rights Act (?Ç£Title VII?Ç¥). In accordance with this EEOC guidance, an employer may require employees who are physically entering the workplace to be vaccinated for COVID-19, subject to certain ?Ç£reasonable accommodations?Ç¥ under the ADA and Title VII for employees who are unable to get vaccinated due to a covered disability, pregnancy, or sincerely held religious belief, practice, or observance. The guidance provides a list of examples of reasonable accommodations, such as requiring the use of face masks, social distancing, working modified shifts, periodic testing for COVID-19, and giving employees the opportunity to telework or accept a reassignment. In addition, an employer… Continue Reading

Court Requires EEOC to Reconsider Wellness Program Regulations

Generally, the Americans with Disabilities Act (the “ADA“) and the Genetic Information Non-Discrimination Act (“GINA“) permit employers to offer certain wellness programs if they are “voluntary.” The EEOC issued regulations in 2016, which we discussed here, permitting wellness programs to have incentives of up to 30 percent of the cost of health plan coverage in order to align with permitted incentives under the Health Insurance Portability and Accountability Act (“HIPAA“). The AARP sued the EEOC claiming that this 30 percent limit was still coercive and was contrary to the “voluntary” requirement under the ADA and GINA. The U.S. District Court for the District of Columbia granted AARP’s motion for summary judgment, concluding that the EEOC failed to adequately explain its decision to interpret “voluntary” as permitting a 30 percent incentive level. Although governmental agencies are generally given deference, the “EEOC does not appear to have considered any factor that actually… Continue Reading

EEOC Clarifies Calculation of Wellness Incentive Limits Under ADA Final Regulations

In May, we provided information regarding the EEOC?ÇÖs release of final ADA and GINA regulations and their impact on wellness programs, which is available?áhere. The final regulations indicate that when an employer offers multiple medical plan options but enrollment is not required to participate in the wellness program, the applicable wellness incentive limits for ADA and GINA purposes are based on the total cost of self-only coverage in the lowest cost plan option available. The final regulations did not explicitly address how to calculate the applicable wellness limits when multiple medical plan options are available and enrollment is required to participate in the wellness program, but more than one option can be used to satisfy the enrollment requirement. The conservative approach is to assume a similar outcome and base the incentive limits on the total cost of self-only coverage in the lowest cost plan option available that permits participation in… Continue Reading

EEOC Provides Sample ADA Wellness Program Notice

The EEOC recently released a sample notice, along with a series of questions and answers, to assist employers that offer wellness programs in satisfying the notice requirement set forth in the final regulations regarding the compliance of employer-sponsored wellness programs with the Americans with Disabilities Act (?Ç£ADA?Ç¥). Use of the sample notice is not mandatory, but employers that offer a wellness program are required to provide a notice to employees which informs them, in an understandable manner, of (i) the information that will be collected by the employer in connection with the wellness program, (ii) how such information will be used, (iii) who will receive it, and (iv) how it will be kept confidential. The effective date for compliance with the new ADA notice requirements is the first day of the plan year beginning on or after January 1, 2017. The sample notice is available?áhere. The questions and answers are… Continue Reading

EEOC Issues Proposed Regulations on Wellness Programs and the ADA

On April 16, 2015, the U.S. Equal Employment Opportunity Commission (the ?Ç£EEOC?Ç¥) issued proposed regulations applying Title I of the Americans with Disabilities Act (the ?Ç£ADA?Ç¥) to employer wellness programs offered through a group health plan. The proposed regulations clarify that, under the ADA, wellness programs that collect employees?ÇÖ medical information or require them to undergo medical examinations must be reasonably likely to promote health or prevent disease. Moreover, employees may not be forced to participate in the program or be denied coverage if they refuse to participate. In addition, employers will be required to provide employees with a notice describing what medical information will be collected as well as how it will be used and protected. The proposed regulations can be found here.?á A fact sheet for small businesses can be found here.?á A question and answer document can be found here.

EEOC Files Second Wellness Program Lawsuit Against an Employer

The U.S. Equal Employment Opportunity Commission (?Ç£EEOC?Ç¥) sued an employer claiming it violated the Americans with Disabilities Act (?Ç£ADA?Ç¥) when the employer cancelled coverage and transferred 100% of the premium to the employee for failing to complete biometric screening and a health risk assessment. Employees who completed the screening were charged only 25% of the premium. This lawsuit follows the EEOC?ÇÖs ADA lawsuit earlier this year against a different employer that terminated an employee for failing to participate in the employer?ÇÖs wellness program. The EEOC has taken the position that wellness programs must be voluntary and cannot compel participation by cancelling coverage or imposing onerous penalties. The EEOC?ÇÖs Press Release can be found here.

Potential Pitfalls of Online Relationships Between Supervisors and their Employees

Employers grappling with social media issues often ask whether it is advisable to permit employees to friend each other on Facebook, or connect on other social media sites.?á While it makes sense to typically avoid prohibiting friendships among rank-and-file employees (which could violate the National Labor Relations Act), social media interaction between supervisors and their subordinates can be more complicated.?á In these cases, it is important to recognize that a supervisor?ÇÖs decision to connect with his or her subordinates via social media may result in inappropriate or unexpected disclosures.?á This can be a problem for two reasons. First, an employee?ÇÖs social media activity may reveal the employee?ÇÖs religion, national origin, disability, or other protected characteristic.?á A supervisor who inadvertently discovers this information online may later be accused of unlawfully making employment decisions based on this knowledge.?á Second, as the employer in Peer v. F5 Networks learned, employees whose social media… Continue Reading

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