The U.S. Equal Employment Opportunity Commission (EEOC) recently issued proposed new rules clarifying its stance on the interplay between the Americans with Disabilities Act (ADA) and employer wellness programs. Officially called a “notice of proposed rulemaking” or NPRM, the new rules propose changes to the text of the EEOC’s ADA regulations and to the interpretive guidance explaining them.
If adopted, the NPRM will provide employers guidance on how they can use financial incentives or penalties to encourage employees to participate in wellness programs without violating the ADA, even if the programs include disability-related inquiries or medical examinations. This should be welcome news for employers, having spent nearly the past six years in limbo as a result of the EEOC’s virtual radio silence on this question.
A Brief History: How
Did We Get Here?
In 1990, the ADA was enacted to protect individuals with ADA-qualifying
disabilities from discrimination in the workplace. Under the ADA,
employers may conduct medical examinations and obtain medical histories as part
of their wellness programs so long as employee participation in them is
voluntary. The EEOC confirmed in 2000 that it considers a wellness
program voluntary, and therefore legal, where employees are neither required to
participate in it nor penalized for non-participation.
Then, in 2006, regulations were issued that exempted wellness programs from the nondiscrimination requirements of the Health Insurance Portability and Accountability Act (HIPAA) so long as they met certain requirements. These regulations also authorized employers for the first time to offer financial incentives of up to 20% of the cost of coverage to employees to encourage them to participate in wellness programs.
But between 2006 and 2009 the EEOC waffled on the legality of these financial incentives, stating that “the HIPAA rule is appropriate because the ADA lacks specific standards on financial incentives” in one instance, and that the EEOC was “continuing to examine what level, if any, of financial inducement to participate in a wellness program would be permissible under the ADA” in another.
Shortly thereafter, the 2010 enactment of President Obama’s Patient Protection and Affordable Care Act (ACA), which regulates corporate wellness programs, appeared to put this debate to rest. The ACA authorized employers to offer certain types of financial incentives to employees so long as the incentives did not exceed 30% of the cost of coverage to employees.
But in the years following the ACA’s enactment, the EEOC restated that it had not in fact taken any position on the legality of financial incentives. In the wake of this pronouncement, employers were left understandably confused and uncertain. To alleviate these sentiments, several federal agencies banded together and jointly issued regulations that authorized employers to reward employees for participating in wellness programs, including programs that involved medical examinations or questionnaires. These regulations also confirmed the previously set 30%–of-coverage ceiling and even provided for incentives of up to 50%of coverage for programs related to preventing or reducing the use of tobacco products.
After remaining silent about employer wellness programs for nearly five years, in August 2014, the EEOC awoke from its slumber and filed its very first lawsuit targeting wellness programs, EEOC v. Orion Energy Systems, alleging that they violate the ADA. In the following months, it filed similar suits against Flambeau, Inc., and Honeywell International, Inc. In EEOC v. Honeywell International, Inc., the EEOC took probably its most alarming position on the subject to date, asserting that a wellness program violates the ADA even if it fully complies with the ACA.
What’s In The NPRM?
According to EEOC Chair Jenny Yang, the purpose of the EEOC’s NPRM is to
reconcile HIPAA’s authorization of financial incentives to encourage
participation in wellness programs with the ADA’s requirement that medical
examinations and inquiries that are part of them be voluntary. To that
end, the NPRM explains:
Each of these parts of the NPRM is briefly discussed below.
What is an employee
wellness program?
In general, the term “wellness program” refers to a program or activity offered
by an employer to encourage its employees to improve their health and to reduce
overall health care costs. For instance, one program might encourage
employees to engage in healthier lifestyles, such as exercising daily, making
healthier diet choices, or quitting smoking. Another might obtain medical
information from them by asking them to complete health risk assessments or
undergo a screening for risk factors.
The NPRM defines wellness programs as programs that are reasonably designed to promote health or prevent disease. To meet this standard, programs must have a reasonable chance of improving the health of, or preventing disease in, its participating employees. The programs also must not be overly burdensome, a pretext for violating anti-discrimination laws, or highly suspect in the method chosen to promote health or prevent disease.
How is voluntary
defined?
The NPRM contains several requirements that must be met in order for
participation in wellness programs to be voluntary. Specifically,
employers may not:
Additionally, for wellness programs that are part of a group health plan, employers must provide a notice to employees clearly explaining what medical information will be obtained, how it will be used, who will receive it, restrictions on its disclosure, and the protections in place to prevent its improper disclosure.
What incentives may
you offer?
The NPRM clarifies that the offer of limited incentives is permitted and will
not render wellness programs involuntary. Under the NPRM, the maximum
allowable incentive employers can offer employees for participation in a
wellness program or for achieving certain health results is 30% of the total
cost of coverage to employees who participate in it. The total cost of
coverage is the amount that the employer and the employee pay, not just the
employee’s share of the cost. The maximum allowable penalty employers may
impose on employees who do not participate in the wellness program is the
same.
What about
confidentiality?
The NPRM does not change any of the exceptions to the confidentiality
provisions in the EEOC’s existing ADA regulations. It does, however, add
a new subsection that explains that employers may only receive information
collected by wellness programs in aggregate form that does not disclose, and is
not likely to disclose, the identity of the employees participating in it,
except as may be necessary to administer the plan.
Additionally, for a wellness program that is part of a group health plan, the health information that identifies an individual is “protected health information” and therefore subject to HIPAA. HIPAA mandates that employers maintain certain safeguards to protect the privacy of such personal health information and limits the uses and disclosure of it.
Keep in mind that the NPRM revisions discussed above only clarify the EEOC’s stance regarding how employers can use financial incentives to encourage their employees to participate in employer wellness programs without violating the ADA. It does not relieve employers of their obligation to ensure that their wellness programs comply with other anti-discrimination laws as well.
Is This The Law?
The NPRM is just a notice that alerts the public that the EEOC intends to
revise its ADA regulations and interpretive guidance as they relate to employer
wellness programs. It is also an open invitation for comments regarding
the proposed revisions. Anyone who would like to comment on the NPRM must
do so by June 19, 2015. After that, the EEOC will evaluate all of the
comments that it receives and may make revisions to the NPRM in response to
them. The EEOC then votes on a final rule, and once it is approved, it
will be published in the Federal Register.
Since the NPRM is just a proposed rule, you do not have to comply with it just yet. But our advice is that you bring your wellness program into compliance with the NPRM for a few reasons. For one, it is very unlikely that the EEOC, or a court, would fault you for complying with the NPRM until the final rule is published. Additionally, many of the requirements that are set forth in the NPRM are already required under currently existing law. Thus, while waiting for the EEOC to issue its final rule, in the very least, you should make sure that you do not:
In addition you should provide reasonable accommodations to employees with disabilities to enable them to participate in wellness programs and obtain any incentives offered (e.g., if an employer has a deaf employee and attending a diet and exercise class is part of its wellness program, then the employer should provide a sign language interpreter to enable the deaf employee to participate in the class); and ensure that any medical information is maintained in a confidential manner.
Wondering what your employee is smoking in the break room, likely in violation of your “no-smoking” policy? Chances are it is an electronic smoking device, such as an e-cigarette or vaporizer. What should you do about it? Anything?
Many people are familiar with the increasingly popular e-cigarettes and vaporizers, forcing employers to now grapple with the question of whether to permit these devices in the workplace. The answer to this question is constantly changing based on new and revised laws and regulations. It can be difficult to stay aware of this ever-changing issue.
Not A Fad
Electronic smoking devices, particularly vaporizers, are skyrocketing in
popularity. One example of this continued popularity is shown by Oxford
Dictionary’s selection of the word “vape” as the 2014 word of the year. With
around five million Americans currently “vaping” and a $2.5 billion industry
with a 23% rise in sales in 2014, the electronic smoking industry is here to
stay.
There is no indication that growth will slow down any time soon, as sales are projected to surpass $3.5 billion this year and are leaving companies scrambling to meet rising demand.
How They Work
At a basic level, e-cigarettes and vaporizers allow users to consume nicotine
or other substances without smoking tobacco. However, there are noted
differences between e-cigarettes and vaporizers. E-cigarettes are smaller
cigarette-like electronic devices with batteries that heat a cartridge
containing liquid nicotine until it produces an inhalable vapor.
A vaporizer is comparatively larger than an e-cigarette and resembles a large pen. The vaporizer gradually heat the “e-liquid” with warm air, so it tends to last longer than e-cigarettes. Also, the vaporizer is refillable whereas an e-cigarette cartridge must be replaced when spent. To distinguish electronic vapor from smoke, users have coined the term “vaping,” instead of smoking.
The cartridges and refillable liquids contain mostly liquid nicotine and flavoring. However, there are also small amounts of propylene glycol or vegetable glycerin. The e-liquids also come in a wide assortment of flavors, including traditional tobacco as well as kid-friendly ones like gummy bear, snickerdoodle and watermelon mint.
The Controversy.
So what is all the fuss over these devices? To put it simply, there is not a
lot of established data about the health risks. The technology is new, as the
first e-cigarette was marketed in 2002. Manufacturers only introduced
e-cigarettes to the United States in 2007.
Since the products are new, it is not surprising that scientific data is limited. Scientific studies generally conclude that e-cigarettes and vaporizers are less harmful to an individual’s health than traditional tobacco cigarettes. The problem is that no one knows exactly what “less harmful” means.
Due to these uncertainties, there is significant controversy surrounding these devices. Advocates emphasize the value of e-cigarettes and vaporizers as an effective cessation device. Opponents point to the potential health risks. Studies have found that e-cigarette vapor may contain metal particles, carcinogens like formaldehyde, and enough nicotine to cause measurable secondhand exposure. But the long-term effects of e-cigarette vapor and direct exposure to liquid nicotine are unknown.
Federal And State
Prohibitions.
State and local governments were among the first to take action against
e-cigarettes and vaporizers. New Jersey, Utah, and North Dakota placed bans on
the use of the devices in public places and hundreds of cities have followed
suit. For example, Los Angeles, New York, Boston, and Chicago all banned the
use of e-cigarettes in restaurants, bars, nightclubs, and other public spaces.
Several California cities even require vendors to acquire special licenses to
sell e-cigarettes.
The federal government is now weighing in on the debate. The FDA wants to keep a closer eye on e-cigarette manufacturers. The agency is concerned that manufacturers are not required to comply with cleanliness or safety standards. Manufacturers are also currently under no obligation to disclose ingredients. In 2014, the FDA released proposed regulations that would deem tobacco products, including electronic smoking devices, subject to the federal Food, Drug, and Cosmetic Act.
The proposed rule received more than 82,000 comments during the notice and comment period which ended in August of last year, which likely means that it could be some time before the final rules are released. If approved, it would give the FDA the authority to set age restrictions and the power to partake in rigorous scientific review to monitor the ingredients, manufacturing process, and therapeutic claims of e-cigarette companies.
The Pros And Cons
Why is this relevant to you?
Employers must take action and determine their company’s stance on the issue before a supervisor walks into the break room to find the crew puffing on e-cigarettes. While the debate between opposition groups and advocates is just heating up, don’t wait to act. Weigh the pros and cons of allowing electronic smoking devices in the workplace and determine what is best for your company.
There are many factors that employers must take into consideration. Rightly or wrongly, e-cigarettes are perceived as tobacco. The Surgeon General’s office categorizes e-cigarettes as a “tobacco product.” Many state and local governments restrict e-cigarette usage in the same way as tobacco. Some insurance companies already impose a surcharge on e-cigarette users’ premiums, equating e-cigarettes to tobacco.
Employers with nicotine-free hiring policies, particularly those in the healthcare industry, have started to specifically ban e-cigarette users. As a result, these employers are treating users of e-cigarettes and vaporizers the same as users of traditional tobacco products.
Give serious consideration to whether allowing e-cigarette use in your workplace undermines a smoke-free environment. Allowing this practice is likely to cause distractions, may cause questions or concern from customers, and may anger other employees concerned about the secondary impact on their health.
Although the long-term effects of e-cigarettes and vaporizers are currently unknown, the developing consensus is that secondhand vapor contains nicotine or something worse. As a result, secondhand vapor may pose a risk to pregnant women, the elderly, children, and individuals with asthmatic conditions particularly.
Our Advice
We think that the cautious course of action is to treat electronic smoking
devices the same as traditional cigarettes and other tobacco products under
your no-smoking policy. Taking this step and eliminating the risk is simple:
simply amend your employee handbook to include electronic smoking devices,
e-cigarettes, and vaporizers, in the definition of smoking. Employees will then
have to use e-cigarettes outside or offsite, depending on your particular
policy.
By amending your employee handbook, you reduce risk and eliminate distracting behavior. Nonsmoking employees (almost always the majority) will feel comfortable at work and employees who smoke will only be required to comply with an already familiar procedure. Most importantly, employees will not have to worry about the potential harm caused by e-cigarette use or secondhand vapor.
Although amending the handbook may be the easiest answer, remember to follow the proper procedures when amending your handbook. Ensure that any amendments are in compliance with state law, federal law, and especially the National Labor Relations Act. Finally, ensure that all employees receive a copy of the updated handbook, understand the revisions, and acknowledge in writing that they understand the revisions.
The IRS released the 2016 cost-of-living adjustment amounts for health savings accounts (HSAs). Adjustments have been made to the HSA contribution limit for individuals with family high deductible health plan (HDHP) coverage and to some of the deductible and out-of-pocket limitations for HSA-compatible HDHPs.
The HSA contribution limit for an individual with self-only HDHP coverage remains at $3,350 for 2016. The 2016 contribution limit for an individual with family coverage is increased to $6,750. These limits do not include the additional annual $1,000 catch-up contribution amount for individuals age 55 and older, which is not subject to cost-of-living adjustments.
HSA-compatible HDHPs are defined by certain minimum deductible amounts and maximum out-of-pocket expense amounts. For HDHP self-only coverage, the minimum deductible amount is unchanged for 2016 and cannot be less than $1,300. The 2016 maximum out-of-pocket expense amount for self-only coverage is increased to $6,550. For 2016 family coverage, the minimum deductible amount is unchanged at $2,600 and the out-of-expense amount increases to $13,100.
Florida’s 2015 legislative session started in March with many employment-related measures being introduced. They include:
SB 98, HB 25: Employment Discrimination Creating the Helen Gordon Davis Fair Pay Protection Act recognizing the importance of the Department of Economic Opportunity and the Florida Commission on Human Relations in ensuring fair pay; creating the Governor’s Recognition Award for Pay Equity in the Workplace; and requiring that the award be given annually to employers in Florida who have engaged in activities that eliminate barriers to equal pay for equal work for women
SB 114, HB 47: State Minimum Wage Increasing the state’s hourly minimum wage to $10.10.
SB 156, HB 33: Prohibited Discrimination Revising the Florida Civil Rights Act to include sexual orientation and gender identity or expression as protected characteristics; and prohibiting discrimination based on perceived race, color, religion, sex, national origin, age, sexual orientation, gender identity or expression, handicap, or marital status.
SB 192, SB 246, HB 1: Texting While Driving Revising penalties for violations of the Florida Ban on Texting While Driving Law to include enhanced penalties when the violation is committed in a school zone and removing requirement that provisions be enforced as secondary action by law enforcement.
SB 214, HB977: Discrimination in Employment Screening (“Ban the Box”) Prohibiting an employer from inquiring into or considering an applicant’s criminal history on an initial employment application, unless required to do so by law.
SB 356, HB 121: Employment of Felons Providing incentives for employment of person previously convicted of felony.
SB 456, HB 325: Labor Pools Revising the methods by which labor pools are to compensate day laborers.
SB 528, HB 683: Medical Use of Marijuana Permitting medical use of marijuana and providing licensure requirements for growers and retailers.
SB 890, HB 455: Florida Overtime Act of 2015 Requiring payment of time-and-one-half an employee’s regular rate of pay for all hours worked over eight in a day, over 40 in a work week, or on the seventh day of any workweek.
SB 892, HB 297: Safe Work Environments Subjecting employees to an “abusive work environment” is made an unlawful employment practice, and retaliation for reporting the practice is prohibited.
SB982, HB 625: Discrimination Based on Pregnancy Amending the Florida Civil Rights Act to prohibit discrimination based on pregnancy, childbirth, or related medical conditions. (The Florida Supreme Court in 2014 held that the Act protects against pregnancy discrimination.)
SB1318, HB 589: State Minimum Wage Making it a third degree felony to procure labor for less than minimum wage, i.e., “with intent to defraud or deceive a person.”
SB1396, HB 433: Employment Discrimination Amending the Florida Civil Rights Act to include unpaid interns within the definition of “employee.”
SB1490, HB 1185: Florida Healthy Working Families Act (“Mini FMLA”) Requiring employers to provide sick and safe leave to employees and creating a complaint procedure, plus a civil cause of action for damages and fees in the event of a violation. Employers of more than nine employees must provide paid sick and safe leave; employers of nine or fewer employees must provide unpaid sick and safe leave.
SB 126: Social Media Privacy Among other things, prohibiting an employer from requesting or requiring access to a social media account of an employee or prospective employee under certain circumstances.
SB 1096: Unemployment Compensation Prohibiting disqualification of victims of domestic violence from receiving benefits if they leave work voluntarily.
Job seekers are not the only ones who may say something inappropriate or botch a question during a job interview. A recent survey by CareerBuilder found that approximately 20% of hiring managers reported that they have asked an interview question only to find out later that asking the question possibly violated the law.
It is important for both interviewer and interviewee to understand what employers have (and don’t have) a legal right to ask in a job interview. Even though their intention may be harmless, hiring managers could be putting themselves at risk for legal action by asking certain questions, that some could argue are discriminatory.
A number of hiring managers responding to the poll said they didn’t know if it was legal to ask job applicants about arrest records. Attorneys familiar with the issue agreed that asking about applicants’ criminal records can be tricky for hiring managers.
The Equal Employment Opportunity Commission (EEOC) issued guidance in 2012 designed to help employers understand what they can and can’t ask regarding criminal records.
The EEOC guidance states that an “arrest does not establish that criminal conduct has occurred, and a job exclusion based on an arrest, in itself, is not job-related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.”
Asking job applicants about their criminal records has become something of a hot employment topic as a growing number of states and municipalities have enacted “ban-the-box” laws that prohibit employers from asking on job applications if job seekers have been convicted of a crime.
Ban-the-box laws generally allow employers to conduct background screenings and ask about convictions later in the employment process—such as during job interviews. However, the constantly changing legal landscape on what employers can and can’t ask on applications and during interviews can confuse and frustrate many hiring managers.
Generally, the best policy is to avoid questions about applicants’ age, marital status, political beliefs, disabilities, ethnicity, religion and family. Some questions that can be legal and seem relevant to the job can be problematic by the way the question is posed. For example, the question “Are you a U.S. citizen?” might seem reasonable if a hiring manager is trying to determine if an applicant is eligible to work in the U.S. However, the better and more legally prudent question is: “Are you eligible to work in the United States?” Asking about a person’s citizenship status could reveal information about ethnic and national origin that could expose employers to complaints of bias.
Many articles on handling OSHA inspections provide the same basic guidelines and little explanation of why employers should take certain steps. You may already know to take photos whenever the Compliance Officer (CO) takes shots and to take notes. But do you know why to take those photos and what to look for? What do you need to note in order to challenge citations when they are issued six months later?
Plan In Advance
Every company site should have a number of managers who know the basic steps to
take whenever any government investigator shows up. The most important step is
for site managers to know whom to call to obtain guidance. No executive or
in-house counsel will be pleased to learn of an investigation upon receipt of a
citation.
At most, site management can deal with evacuating and protecting employees, and dealing with first responders. The company needs a system in place so that with one call the site manager activates corporate support, including legal and risk management guidance, assistance to employees and families, and media management. Set up this system and practice response. Do not assume that you will never face a fatality or catastrophe. Tornadoes, vehicular accidents, and workplace violence can strike any employer.
Make sure that management takes an OSHA inspection seriously. Many employers are unprepared for the aggressive approach now dictated by the current administration. OSHA is a great organization, but even seemingly minor-sounding citations can harm the business. In some industries, a single citation classified as “serious” can harm bidding opportunities. Most of the recent six figure citations have involved repeat violations of routine items such as a missing electric cabinet switch label, a damaged extension cord, partially blocked electric cabinet, or one employee who missed his annual training.
Each violation can serve as the basis for a repeat violation of up to $70,000 per item at ANY company location in any Fed-OSHA state for five years. No inspection is minor. And by the way, OSHA’s improved IT system will allow the agency to better track your corporation’s performance, even when the company operates under many names.
Manage The Inspection
Step one is to ask “why” OSHA is present. Many inspections are triggered by a
complaint and OSHA must tell you the reasons. As of this January 2015,
employers in Fed-OSHA states must report to OSHA every hospitalization for more
than observation, as well as all amputations. An amputation can be as modest as
a tip of a finger. These focused responses increase the probability of an OSHA
visit.
In each of these circumstances, admit OSHA for the purpose of the complaint and limit the inspection to the scope of the complaint. OSHA will broaden the inspection if the officials observe hazards or if employees mention other hazards. But require OSHA to justify expanding the scope. Be courteous and professional with the Compliance Officer but know and exercise your rights. Always focus first on safety, but that attitude does not preclude making OSHA live by its own procedures.
Recognize that OSHA must establish: 1) an applicable standard; 2) a hazard; 3) employee exposure; and 4) that the employer knew of the violation or hazard, or should have known of it with the exercise of “reasonable diligence.” Make sure that a hazard exists. Measure fall distances, check guards, etc. The burden is on OSHA to prove these four elements, so check to see if OSHA can prove that any employees were exposed in the last six months or would reasonably be expected to be exposed in the normal course of business. Is the area isolated? Do employees work near the alleged hazard? How often do employees travel in that area? How long was the hazard present?
OSHA may not document the employer’s “knowledge” of a violation. Any supervising employee’s knowledge of a violation is “imputed” to the company, and even when OSHA cannot prove that a supervising employee knew of the issue, they can establish this element by showing that the employer should have known of the violation with the “exercise of reasonable diligence.”
So OSHA must prove that the employer didn’t enforce safety rules, training was inadequate or the employer made little effort to provide oversight. Show that the company did exercise this due diligence. Other important questions include how long a violation was present, when supervisory employees were last in the area, and whether the employer did any walk-arounds or inspections.
Take Your Time
Don’t be rushed and bullied about documents. Some documents such as OSHA Form
300s and MSDSs must be promptly provided, but you have the right to a
reasonable amount of time to provide other materials. Review them. Consider if
materials may be privileged or protected work product. Don’t volunteer
self-audits, insurance and consultant reports or other similar materials
without talking to counsel.
If documentation is weak, try to determine where on-the-job instruction occurred or where oral instructions were provided. Counsel may be able to use such information as defenses, to reduce the classification, or to build good will. Obtain legal guidance: remember that if you knew of a standard’s requirement and did not follow it, there is a possibility that OSHA might assert a “willful” classification.
In developing defenses dig, dig, dig. There are always more facts. Don’t delegate. Ask the questions yourself.
Exercise your right to sit in on or have counsel attend interviews of any employee who supervises employees because they can bind the company. If a fatality, project delay, or any ancillary legal matter is involved, explain to OSHA that an additional concern is with protecting the company in other legal arenas.
You have an absolute right to sit in with managers but you might as well show courtesy to the Compliance Officer. This is probably a time to involve outside counsel. You may also want to contact counsel about whether OSHA will define an employee as a supervisor. OSHA uses a broader definition than the NLRB, or the wage-hour division.
OSHA has the right to interview hourly employees in private, but you can briefly explain to the employees the reason that they are being interviewed, and that you appreciate their cooperation and to tell the truth. Sometimes it is okay to tell them the topics OSHA may discuss and that may allow a bit of briefing, but mainly encourage them to tell the truth. Ensure that employees know that you appreciate their cooperation with OSHA. OSHA is very sensitive to even a whiff of intimidation or threat of retaliation.
Multiemployer worksites present special challenges. When more than one employer is on site, OSHA can cite the employee’s employer (the “exposing employer”) and the “supervising” employer who was directing the work (such as at construction sites or for contingent workers) or the “creating” employer who generated the hazard, or the “correcting” employer who was responsible to address the hazard, or all of the above!
Unfortunately, it often seems that one employer on site will try to persuade OSHA of questionable facts and throw other employers under the proverbial bus. Be alert.
Push Back
Do go to the OSHA Informal Conference after citations are issued, and do
contest all citations if you have reasonable arguments. Remember that OSHA
focuses on safety and does not consider whether the Secretary can carry its
burdens before a Judge, but their attorneys do recognize this reality.
Negotiations may be fruitful, but don’t contest the matter if you have nothing
to back up your claims.
So long as you ensure OSHA knows that you will and are addressing any hazards, they will understand that your decision is dictated by business necessity and does not show a disregard for safety.
Finally. Do not miss the contest period! And be aware that many of the “State-OSHA plans” have different appeal processes.
During this year, businesses will be hearing a lot about the Affordable Care Act’s (ACA’s) information reporting requirements under Code Sections 6055 and 6056. Information gathering will be critical to successful reporting, and there is one aspect of that information gathering which employers might want to take action on sooner rather than later – collecting Social Security numbers (SSNs), particularly when required to do so from the spouses and dependents of their employees. There are, of course, ACA implications for not taking this step, as well as data privacy and security risks for employer and their vendors.
Under the ACA, providers of “minimum essential coverage” (MEC) must report certain information about that coverage to the Internal Revenue Service (IRS), as well as to persons receiving that MEC. Employers that sponsor self-insured group health plans are providers of MEC for this purpose, and in the course of meeting the reporting requirements, must collect and report SSNs to the IRS. However, this reporting mandate requires those employers (or vendors acting on their behalf) to transmit to the IRS the SSNs of employee and their spouses and dependents covered under the plan, unless the employers either (i) exhaust reasonable collection efforts described below, (ii) or meet certain requirements for limited reporting overall.
Obviously, employers are familiar with collecting, using and disclosing employee SSNs for legitimate business and benefit plan purposes. Collecting SSNs from spouses and dependents will be an increased burden, creating more risk on employers given the increased amount of sensitive data they will be handling, and possibly from vendors working on their behalf. The reporting rules permit an employer to use a dependent’s date of birth, only if the employer was not able to obtain the SSN after “reasonable efforts.” For this purpose, reasonable efforts means the employer was not able to obtain the SSN after an initial attempt, and two subsequent attempts.
From an ACA standpoint, employers with self-insured plans that have not collected this information should be engaged in these efforts during the year (2015) to ensure they are ready either to report the SSNs, or the DOBs. At the same time, collecting more sensitive information about individuals raises data privacy and security risks for an organization regarding the likelihood and scope of a breach. Some of those risks, and steps employers could take to mitigate those risks, are described below.
Employers navigating through ACA compliance and reporting requirements have many issues to be considered. How personal information or protected health information is safeguarded in the course of those efforts is one more important consideration.
The IRS and the Treasury Department issued a notice on the so-called “Cadillac Tax”—a 40 percent excise tax to be imposed on high-cost employer-sponsored health plans beginning in 2018 under the Affordable Care Act (ACA).
Notice 2015-16, released on Feb. 23, 2015, discusses a number of issues concerning the tax and requests comments on the possible approaches that ultimately could be incorporated in proposed regulations. Specifically, the guidance states that the agencies anticipate that pretax salary reduction contributions made by employees to health savings accounts (HSAs) will be subject to the Cadillac tax.
Background
In 2018, the ACA provides that a nondeductible 40 percent excise tax be imposed on “applicable employer-sponsored coverage” in excess of statutory thresholds (in 2018, $10,200 for self-only, $27,500 for family). As 2018 approaches, the benefit community has long awaited guidance on this tax. While many employers have actively managed their plan offerings and costs in anticipation of the impact of the tax, those efforts have been hampered by the lack of guidance. Among other things, employers are uncertain what health coverage is subject to the tax and how the tax is calculated.
Particularly, Notice 2015-16 addresses:
The agencies are requesting comments on issues
discussed in this notice by May 15, 2015. They intend to issue another notice
that will address other areas of the excise tax and anticipates issuing
proposed regulations after considering public comments on both notices.
Applicable Coverage
Of most immediate interest to plan sponsors is the specific type of coverage (i.e., “applicable coverage”) that will be subject to the excise tax, particularly where the statute is unclear.
Employee Pretax HSA
Contributions
The ACA statute provides that employer contributions to an HSA are subject to
the excise tax, but did not specifically address the treatment of employee
pretax HSA contributions. The notice says that the agencies “anticipate that
future proposed regulations will provide that (1) employer contributions to
HSAs, including salary reduction contributions to HSAs, are included in
applicable coverage, and (2) employee after-tax contributions to HSAs are
excluded from applicable coverage.”
Note: This anticipated treatment of employee pretax contributions to HSAs will have a significant impact on HSA programs. If implemented as the agencies anticipate, it could mean many employer plans that provide for HSA contributions will be subject to the excise tax as early as 2018, unless the employer limits the amount an employee can contribute on a pretax basis.
Self-Insured Dental
and Vision Plans
The ACA statutory language specifically excludes fully insured dental and
vision plans from the excise tax. The treatment of self-insured dental and
vision plans was not clear. The notice states that the agencies will consider
exercising their “regulatory authority” to exclude self-insured plans that
qualify as excepted benefits from the excise tax.
Employee Assistance
Programs
The agencies are also considering whether to exclude excepted-benefit employee
assistance programs (EAPs) from the excise tax.
Onsite Medical Clinics
The notice discusses the exclusion of certain onsite medical clinics that offer
only de
minimis care to employees,
citing a provision in the COBRA regulations, and anticipates excluding such
clinics from applicable coverage. Under the COBRA regulations an onsite clinic
is not considered a group health plan if:
The agencies are also asking for comment on
the treatment of clinics that provide certain services in addition to first
aid:
In Closing
With the release of this initial guidance, plan sponsors can gain some insight into the direction the government is likely to take in proposed regulations and can better address potential plan design strategie
The Department of Labor has issued a final rule that will allow an employee to takeFMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognizes their marital status. This rule change will impact the manner in which employers administer FMLA leave.
Where We Were
The FMLA regulations have guided us since their inception that the term “spouse” was to be defined according to the law of the state in which an employee resides, as opposed to the jurisdiction where the marriage was entered. This distinction became particularly significant after the U.S. Supreme Court’s decision in United States v. Windsor, which struck down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. Before Windsor, that section restricted the definition of marriage for purposes of federal law to opposite-sex marriages. Consequently, federal FMLA leave was generally not available to same-sex married couples even in states that recognized gay marriage. Windsor effectively extended FMLA rights to same-sex married couples, but only if they resided in a state that recognized same-sex marriages, even if they were legally married in another state.
After the Windsor decision, President Obama instructed federal agencies such as the DOL to review all relevant federal statutes to implement the decision and, as expected, the DOL took it as an opportunity to apply Windsor to the FMLA regulations. In June 2014, the DOL adopted a proposed “state of celebration” rule, in which a spousal status for purposes of FMLA is determined not on the state in which the employee currently resides (as currently stated in the FMLA regulations), but based on the law of the state where the employee was married. Thus, if two individuals of the same sex get married in a state that recognizes same-sex marriage, they are considered to be married for federal FMLA purposes even if the state in which they live and work does not currently recognize same-sex marriage. For example, if the employee was married in New York, but now resides with his same-sex spouse in Texas, the employee will enjoy FMLA rights to care for his spouse as if he had resided in New York, since they were married in New York and that state recognizes the right of same-sex couples to marry.
Where We Are Now
After issuing its proposed rule in 2014, the agency now has announced that, on February 25, 2015, it will issue a new final rule (to take effect March 27, 2015) providing that the definition of “spouse” indeed is determined by the state in which a marriage is entered (i.e., the “state of celebration”). As the DOL points out, a place of celebration rule “allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live.” The DOL notes that, as of February 13, 2015, 32 states and the District of Columbia (as well as 18 countries) extend the right to marry to both same- and opposite-sex partners.
A copy of the DOL’s fact sheet on the final rule can be accessed here.
What Does This Mean for Employers?
Here’s what employers need to know and do:
1. As an initial matter, determine whether the FMLA applies to you. If so, you should:
2. Whether or not FMLA applies to you, you should determine whether any state leave law applies to you. These laws may differ on their definitions of same-sex marriage, civil unions and domestic partnerships, and may offer different leave rights depending on the protected category.
3. Keep in mind two particular FAQs on This New DOL Rule (taken, in part, from of the DOL Final Rule FAQs):
Q. Can employers require documentation to verify that a same-sex or common law marriage is valid?
A. The Final Rule makes no changes to the manner in which employers may require employees who take leave to care for a family member to provide reasonable documentation for purposes of confirming a family relationship. An employee may satisfy this requirement either by providing documentation such as a marriage license or a court document, or by providing a simple statement asserting that the requisite family relationship exists. 29 C.F.R. § 825.122(k)
Here’s the catch: It is the employee’s choice to provide a simple statement or another type of document. And DOL has us in a trick bag as to when we can and should ask for reasonable documentation. On one hand, the agency tells us in the final rule, “Employers have the option to request documentation of a family relationship but are not required to do so in all instances.” It also rejected calls for instituting a standard in which employers would be required to show that they requested this documentation in a consistent, non-discriminatory manner. Yet, on the other hand, the DOL is quick to point out that employers “may not use a request for confirmation of a family relationship in a manner that interferes with an employee’s exercise or attempt to exercise his or her FMLA rights.”
Thus, from a practical standpoint, shouldn’t employers institute a consistently-applied, non-discriminatory policy when asking for confirmation that a family relationship exists? In a word, yes. Otherwise, employers risk a claim that they are treating certain employees in a discriminatory manner, thereby interfering with their FMLA rights.
One thing is clear: If an employee has already submitted proof of marriage to the employer for another purpose, such as in electing health care benefits for the employee’s spouse, the DOL finds that “such proof is sufficient to confirm the family relationship for purposes of FMLA leave.” So, employers, no second bites at the apple if you already have this information!
Q. Does the Final Rule Change the Manner in Which Employees Take FMLA leave to care for a child to whom they stand in loco parentis?
A. No. In June 2010, the DOL recognized that eligible employees may take leave to care for the child of the employee’s same-sex partner (married or unmarried) or unmarried opposite-sex partner, provided that the employee meets the in loco parentis requirement of providing day-to-day care or financial support for the child. (You can find more on the in loco parentis rule in DOL Fact Sheet #28B.) In other words, this new rule has no impact on the standards for determining the existence of an in loco parentis relationship.
Even small employers notsubject to the Affordable Care Act’s (ACA) coverage mandate can’t reimburse employees for nongroup health insurance coverage purchased on a public exchange, the Internal Revenue Service confirmed. But small employers providing premium reimbursement in 2014 are being offered transition relief through mid-2015.
IRS Notice 2015-17, issued on Feb. 18, 2015, is another in a series of guidance from the IRS reminding employers that they will run afoul of the ACA if they use health reimbursement arrangements (HRAs) or other employer payment plans—whether with pretax or post-tax dollars—to reimburse employees for individual policy premiums, including policies available on ACA federal or state public exchanges.
This time the warning is aimed at small employers—those with fewer than 50 full-time employees or equivalent workers. While small organizations are not subject to the ACA’s “shared responsibility” employer mandate to provide coverage or pay a penalty (aka Pay or Play), if they do provide health coverage it must meet a range of ACA coverage requirements.
“The agencies have taken the position that employer payment plans are group health plans, and thus must comply with the ACA’s market reforms,” noted Timothy Jost, J.D., a professor at the Washington and Lee University School of Law, in a Feb. 19 post on the Health Affairs Blog. “A group health plan must under these reforms cover at least preventive care and may not have annual dollar limits. A premium payment-only HRA or other payment arrangement that simply pays employee premiums does not comply with these requirements. An employer that offers such an arrangement, therefore, is subject to a fine of $100 per employee per day. (An HRA integrated into a group health plan that, for example, helps with covering cost-sharing is not a problem).”
Transition Relief
The notice provides transition relief for small employers that used premium payment arrangements for 2014. Small employers also will not be subject to penalties for providing payment arrangements for Jan. 1 through June 30, 2015. These employers must end their premium reimbursement plans by that time. This relief does not extend to stand-alone HRAs or other arrangements used to reimburse employees for medical expenses other than insurance premiums.
No similar relief was given for large employers (those with 50 or more full-time employees or equivalents) for the $100 per day per employee penalties. Large employers are required to self-report their violation on the IRS’s excise tax form 8928 with their quarterly filings.
“Notice 2015-17 recognizes that impermissible premium-reimbursement arrangements have been relatively common, particularly in the small-employer market,” states a benefits brief from law firm Spencer Fane. “And although the ACA created “SHOP Marketplaces” as a place for small employers to purchase affordable [group] health insurance, the notice concedes that the SHOPs have been slow to get off the ground. Hence, this transition relief.”
Subchapter S Corps.
The notice states that Subchapter S closely held corporations may pay for or reimburse individual plan premiums for employee-shareholders who own at least 2 percent of the corporation. “In this situation, the payment is included in income, but the 2-percent shareholder can deduct the premiums for tax purposes,” Jost explained. The 2-percent shareholder may also be eligible for premium tax credits through the marketplace SHOP Marketplace if he or she meets other eligibility requirements.
Tricare
Employers can pay for some or all of the expenses of employees covered by Tricare—a Department of Defense program that provides civilian health benefits for military personnel (including some members of the reserves), military retirees and their dependents—if the payment plan is integrated with a group health plan that meets ACA coverage requirements.
Higher Pay Is Still OK
One option that the IRS will allow employers is to simply increase an employee’s taxable wages in lieu of offering health insurance. “As long as the money is not specifically designated for premiums, this would not be a premium payment plan,” said Jost. “The employer could even give the employee general information about the marketplace and the availability of premium tax credits as long as it does not direct the employee to a specific plan.”
But if the employer pays or reimburses premiums specifically, “even if the payments are made on an after-tax basis, the arrangement is a noncompliant group health plan and the employer that offers it is subject to the $100 per day per employee penalty,” Jost warned.
“Small employers now have just over four months in which to wind down any impermissible premium-reimbursement arrangement,” the Spencer Fane brief notes. “In its place, they may wish to adopt a plan through a SHOP Marketplace. Although individuals may enroll through a Marketplace during only annual or special enrollment periods, there is no such limitation on an employer’s ability to adopt a plan through a SHOP.”