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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

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

Employee Benefits Regulations Potentially Impacted by the Biden Administration?ÇÖs Regulatory Freeze

On January 20, 2021, the Biden Administration issued a memorandum (the ?Ç£Memo?Ç¥) announcing a regulatory freeze on regulations that have not taken effect as of the date of the Memo. Specifically, the Memo recommends postponing the effective date of any regulation that has been issued, but has not taken effect, for 60 days from the date of the Memo. The Memo further directs that regulations not yet published in the Federal Register be immediately withdrawn for review. Listed below are some of the proposed and final regulations related to employee benefits that may be subject to withdrawal or postponement under the Memo: Prohibited Transaction Exemption 2020-02 ?Çô Improving Investment Advice for Workers & Retirees. Final Rule. Application of the Employer Shared Responsibility Provisions and Certain Nondiscrimination Rules to Health Reimbursement Arrangements and Other Account-Based Group Health Plans Integrated with Individual Health Insurance Coverage or Medicare. Final Rule. Pension Benefit Statements-Lifetime… 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 Issues Proposed Regulations on Wellness Programs and GINA

On October 30, 2015, the U.S. Equal Employment Opportunity Commission (the ?Ç£EEOC?Ç¥) issued proposed regulations amending previously issued proposed regulations under Title II of the Genetic Information Nondiscrimination Act of 2008 (?Ç£GINA?Ç¥) regarding employer wellness programs. Among other items, the proposed regulations explain that wellness programs that request or require employees (or their covered spouses) to provide genetic information as part of health or genetic services (e.g., through a health risk assessment (?Ç£HRA?Ç¥) involving a medical questionnaire or medical examination) must be reasonably likely to promote health or prevent disease. Furthermore, the proposed regulations clarify that GINA does not prohibit employers from offering limited inducements to employees whose spouses (who are covered under the employer?ÇÖs group health plan) complete an HRA under which genetic information is provided, subject to the requirements that the provision of such information by the spouse is voluntary and that prior written authorization is obtained from… Continue Reading

EEOC Final Rule Extends Recordkeeping Requirements to GINA

The U.S. Equal Employment Opportunity Commission (?Ç£EEOC?Ç¥) issued a final rule extending the recordkeeping requirements under Title VII of the Civil Rights Act of 1964 (?Ç£Title VII?Ç¥) and the Americans with Disabilities Act of 1990 (?Ç£ADA?Ç¥) to entities covered by Title II of the Genetic Information Nondiscrimination Act of 2008 (?Ç£GINA?Ç¥). The final rule does not require the creation of any documents or impose any reporting requirements, rather it only imposes the same record retention requirements to GINA that apply under Title VII and the ADA. The final rule takes effect on April 3, 2012. The final rule is available here.

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