Sometimes a Lack of Regulation Creates Problems

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Typically, when the federal government announces that it won’t be seeking regulatory action any time soon, both brokers and employer group plan sponsors rejoice.

However, in this case, a lack of federal regulatory activity may cause headaches for companies that offer certain kinds of wellness programs and their advisors.

Two federal wellness program regulations from the Equal Employment Opportunity Commission (EEOC) are being vacated as of January 1, 2019.

The EEOC just announced that rather than replace them in October of 2018, as initially planned, new regulations will not come until the summer of 2019 at the earliest. That means many group wellness plans offered in 2019 will need to make some compliance decisions and many brokers will need to help them.

Last year, a federal judge ordered the EEOC to revise two regulations originally crafted to give employers a clear safe harbor to operate voluntary wellness programs that didn’t conflict with the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA). These rules apply to any wellness program that requires participation in a medical service and/or the provision of medical history information to get a wellness incentive.

The judge deemed the incentive limits in the rules arbitrary and asked the EEOC to act quickly to revise them. When the EEOC announced that they didn’t plan on revising the regulations until 2021, the judge issued an order vacating them on January 1, 2019.

In the order, the Judge strongly suggested that the EEOC revise both regulations and their incentive limits before the New Year, so as to not cause problems for group health plan administrators. However, they failed to act, so employers no longer have a wellness program compliance safe harbor to protect them, should a participant claim an ADA or GINA violation. Furthermore, since the court ruled that the incentive limits in the current EEOC rules lack a sound legal footing, the absence of new regulations will make it difficult for wellness plan sponsors to set the value of their program awards in 2019.

Employers offering wellness programs that are subject to the EEOC rules have a few different options for 2019, all of which have their potential pitfalls.

The most dramatic choice a company could make would be to discontinue the group wellness program until the EEOC issues new regulations. Doing so would offer a business complete legal protection, but it would deprive both the employer and the employees the benefits of a group wellness plan.

Another safe and relatively simple choice would be to amend the group wellness program criteria so that no participant has to share medical history data or obtain medical services to get a reward. Lots of group wellness plans already operate under these parameters, so there are many existing program models to follow. However, this option would require a restructuring of the employer’s existing plan, with all of the work and headaches that come along with that.

If an employer group decides to keep asking for medical history information or requiring participants to receive a medical service to get a program reward, then the group will need to make decisions about how they will structure their awards in the year ahead. Whatever choice the employer makes will include some legal risk.

One option would be to continue the 2018 program reward structure into 2019, continuing to follow the old EEOC rules regarding award amounts. These rules limited award values to no more than 30% of the total single employee premium, even if the participant enrolled in family coverage. Participating spouses incented to give a medical history could also earn an award valued up to 30% of the single premium. If the wellness program included a smoking cessation program with medical testing, then the total award value could not exceed 50% of the single employee premium.

Keeping the old reward structure might seem like an appealing choice. It would require no changes and, if challenged, the employer could claim that they were acting in good faith by continuing to follow the old rules in the absence of new ones. However, since the federal judge vacated these rules and declared this incentive formula invalid, employers who follow this path will need to be prepared to make incentive changes if someone files a complaint, and they also risk potential enforcement action for ADA and or GINA violations.

The other possibility is abandoning the EEOC rules and applying the longstanding HIPAA/ACA wellness requirements concerning award value if they are relevant. The ACA/HIPAA incentive value rules only impact health-contingent wellness programs that ask participants to meet a health goal before they get an award. Unlike the EEOC rules, the ACA/HIPAA requirements do not apply to participatory programs, and their limits apply to the overall premium a person pays for coverage, rather than the single premium rate, making it possible for reward values to be much higher for participants with family coverage.

Employers that elect this course of action also would be operating in good faith, but since there is no longer a legal safe harbor, their program could be subject to a legal challenge about potential violations of the ADA and/GINA. The group health plans that follow this path will also have to be prepared to make program incentive changes at some point, assuming that the EEOC will eventually adopt revised requirements.

No matter what choice an employer makes, they should make sure their ERISA plan documents reflect any changes they make to their group wellness plan and stay alert to any new regulatory action by the EEOC during 2019. 

 

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Ask the Experts: Mandatory Flu Shots

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Question: Can we require our employees to get flu shots?

Answer: While there is no law that prohibits employers from mandating flu shots — and in some states, the law requires all healthcare workers to get flu shots — you should carefully determine if the benefits to your business outweigh the risks. There has been a rise in litigation brought by employees who object to this requirement for medical, religious or personal reasons. The Equal Employment Opportunity Commission (EEOC) has filed or joined several lawsuits over claims that inflexible mandatory vaccination policies are discriminatory.

Employees may be entitled to exemptions from a flu shot policy for medical reasons under the Americans with Disabilities Act (ADA) or religious reasons under Title VII of the Civil Rights Act of 1964. Requests for exemptions must be evaluated individually yet treated consistently; a difficult task. You will need to engage in an interactive process with the employee, just as you would for any other request for accommodations, to determine if they can be granted without presenting undue hardship to your company.

The EEOC recommends against mandatory flu shot policies, instead suggesting employers encourage employees get vaccinated on their own. Offering no-cost flu shots on site can further improve workplace vaccination rates by making it more convenient for employees.

If you choose to enact a mandatory flu shot policy, write it carefully to protect your company from the risk of discrimination claims. Make sure the policy:

  • Is worded concisely.
  • Outlines the reasoning behind the policy.
  • Is applied consistently. (Managers who enforce it should be trained on the policy and how to handle requests for exemptions.)
  • Explains the process for requesting exemptions due to medical contraindications or sincerely held religious beliefs. Any medical information obtained as part of the request for an exemption should be kept confidential.

Learn More

Get tips for maintaining a healthy workforce during a seasonal flu outbreak. ThinkHR customers can learn more about the ADA and Title VII by logging into their accounts. If a pandemic flu or other disease outbreak happens, our white paper, How to Handle an Infectious Disease Outbreak, is a good resource. The CDC maintains a list of vaccination laws for various illnesses.

 

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Flexible Spending Accounts – Different Strokes for Different Plans

Guest blog content provided to Q4iNetwork Consultants by National Association of Health Underwriters (NAHU)
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Flexible spending accounts (FSAs), also called Section 125 plans after the relevant section of the Internal Revenue Code, are commonplace benefits. But, perhaps because they are common, some employers and employees don’t understand some of the regulations that apply to these plans.

IRS Publication 969 titled “Health Savings Accounts and Other Tax-Favored Health Plans” is an excellent primer for FSAs and other tax-favored benefits. The most recent version used for preparing 2017 tax returns can be found here.

Among the recent questions received at Compliance Corner was this one: If an employer offers an HSA and a FSA, and an employee elects both is that permissible? Once again with compliance questions, there is no short answer!

The difficulty arises because, according to the IRS in Revenue Ruling 2004-45, an “eligible individual” for a HSA is an individual covered under a high deductible health plan (HDHP) who does not have “coverage for any benefit which is covered under the high deductible health plan.” The FSA, as it is traditionally designed, violates this rule.

But, there is a work around as the Revenue Ruling notes. The work around is a “limited purpose FSA.” A “limited purpose FSA” allows reimbursement of dental and vision expenses. A typical FSA covers medical expenses allowed by IRS Code Section 213(d) – which is much more expansive than dental and vision services.

Another example of a “limited purpose FSA” is known as a “post-deductible FSA.” The “post-deductible FSA” is aptly named as the plan doesn’t reimburse for any medical expenses incurred before the minimum HDHP deductible has been met.

Both the “limited purpose FSA” and the “post-deductible FSA” are covered on page 4 of IRS Publication 969.

Revenue Ruling 2004-45 can be found here.

 

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Ask the Experts: Marijuana and the ADA

 Ask the Experts” guest blog content provided to Q4iNetwork Consultants by Think HR thinkhr logo.png

Question: Is medical marijuana use protected by the Americans with Disabilities Act (ADA)? If so, what accommodations would be considered reasonable?

Answer: You are not required to accommodate medical marijuana use under the Americans with Disabilities Act (ADA). Even though medical marijuana is legal in many states, under the federal Controlled Substances Act (CSA), marijuana is still illegal. The ADA expressly excludes people who use illegal drugs from its definition of “qualified individual with a disability.”

However, as a best practice, you should still engage in the ADA interactive process if a request for a reasonable accommodation for medical marijuana use is made. Under the ADA, employers are required to provide reasonable accommodation to qualified individuals with disabilities unless doing so would cause an undue hardship on the employer. Any request for a reasonable accommodation triggers an interactive process with the employee to determine:

  1. Whether the employee or applicant is a qualified individual with a disability, meaning they can perform the essential functions of the job with a reasonable accommodation; and
  2. What the employee’s needs are, and which appropriate accommodations could be made.

If the employee’s physician has determined that medical marijuana is the most effective treatment, a possible reasonable accommodation would be a waiver of your anti-drug policy. However, if the employee is in a safety-sensitive position, it may pose an undue hardship to make that accommodation and you should consider any other possible accommodations before denying the request.

There are no reasonable accommodations that would work in every circumstance. You will need to review the essential functions and safety requirements of the job with the employee to determine what types of reasonable accommodations may be acceptable while not imposing an undue hardship.

The courts may not concur

While medical marijuana use is not protected by the ADA, this is being challenged at the state level. For example, in July 2017, the Massachusetts Supreme Judicial Court held in Barbuto v. Advantage Sales and Marketing that an employee who was fired after testing positive for marijuana could proceed with a “handicap discrimination” claim under the Massachusetts Fair Employment Practices Act.

In allowing the employee’s discrimination claim to go forward, the Court expressly rejected the employer’s argument that, because marijuana is illegal under federal law, requiring an employer to accommodate medical marijuana use is per se unreasonable.

Instead, the Court held that, at a minimum, the employer was obligated to engage in an interactive dialogue concerning the employee’s ongoing medicinal marijuana use before terminating her employment. The Court did not rule out the possibility that accommodating medicinal marijuana use could pose an undue hardship, leaving that issue open for the employer to address at a later date.

ThinkHR customers can find drug use policies specific to their state in the Employee Handbook Builder.

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Caution if Offering Health Coverage to Non-Employees

Blog content provided to Q4iNetwork Consultants by  National Association of Health Underwriters (NAHU)
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A frequent Compliance Corner question asks whether employers can include independent contractors in their health plans or other benefits. The answer to this question is more complicated than one might think.

Most benefit experts advise against including independent contractors or other non-employees such as 1099 employees, non-employee directors or leased employees on employer’s benefit plans.

Here are three (3) reasons why this may be inadvisable:

1.) Treating an independent contractor like an employee may undermine an employer’s assertion that the individual is not an employee. The DOL and the IRS, as well as their state counterparts, have aggressive programs to uncover worker misclassification. By offering a non-employee employee benefits, an employer’s assertion to these regulators challenging whether an individual is really an employee is weakened. Moreover, if some non-employees gain benefits while others do not, an independent contractor excluded from a plan may sue for benefits exposing an employer to potential penalties.

2.) Covering individuals who are not employees on the health plan may result in creation of a multiple employer welfare arrangement or MEWA. The intent to create a MEWA is irrelevant. MEWAs have IRS reporting requirements such as a Form M-1. If the plan is self-funded there may be further complications with state laws that prohibit self-insured MEWAs

3.) Tax issues also come into play. For example, an independent contractor is not eligible for a Section 125 plan. Employer contributions to coverage may also be taxable.

Complicating this decision is that some insurance carriers will allow independent contractors to be included in an employer’s health plan. But, compliance is the employer’s responsibility, not the insurance carrier’s.

The best answer to whether non-employees can be offered coverage is that employers who wish to evaluate or pursue covering non-employees should consult their legal and benefit advisors.

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