Ada employee rights and employer obligations under aca


Members may download one copy of our sample forms and templates for your personal use within your organization. Neither members nor non-members may reproduce such samples in any other way e. Title I of the Americans with Disabilities Act ADA requires employers to provide reasonable accommodation to qualified applicants and employees with a disability unless the employer can demonstrate that doing so creates an undue hardship to the employer or poses a direct threat to the safety of the employee or others in the workplace. An accommodation may include a change to the work environment or to the way in which a job is usually performed.


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How to Handle an Employee’s Request for an ADA Accommodation


Practical Guidance Free Trial. Downloadable copy. Learn More About Practical Guidance. The following topics are specifically addressed in this article:. The first step in assessing the compliance obligations that apply to a particular wellness program is to determine whether the program is itself a group health plan or is part of a group health plan. An employer-sponsored wellness program is a group health plan if it provides medical care, which is defined as 1 amounts paid for the diagnosis, cure, mitigation, treatment, or prevention of disease, or amounts paid for the purpose of affecting any structure or function of the body; 2 amounts paid for transportation primarily for and essential to medical care referred to in clause 1 ; and 3 amounts paid for insurance covering medical care referred to in clauses 1 and 2.

Examples of medical care include biometric screenings including cholesterol screenings , physical examinations, flu shots, counseling by trained professionals, and other programs that are diagnostic or preventive, or coaching individuals regarding specifically identified health risks. A wellness program that simply promotes good health and a healthy lifestyle likely does not provide medical care. Examples of wellness programs that promote good health and a healthy lifestyle, but which do not provide medical care, include programs that reimburse all or part of the cost for membership in a fitness center or that provide general educational information about how to maintain a healthy diet and exercise regimen.

Even if a wellness program does not provide medical care, the program might still have to comply with the Group Health Plan Mandates if it is part of another group health plan. Examples of instances in which a wellness program may be part of another group health plan include the following:. However, the employer or plan sponsor must ensure compliance with the legal requirements specifically applicable to wellness programs as described in further detail below.

If a wellness program does not provide medical care and is not otherwise part of another group health plan, the program does not have to comply with most of the Group Health Plan Mandates described in this article. A wellness program that is itself a group health plan or is part of a group health plan must comply with non-discrimination requirements under HIPAA.

The HIPAA Wellness Program Regulations recognize two broad categories of wellness programs: participation-only programs and health-contingent programs. Examples of participation-only programs include completion of an HRA, health education sessions, or health coaching, and participation in a biometric screening without requiring that any particular biometric targets be attained.

For a participation-only program to comply with the HIPAA Wellness Program Regulations, participation in the program must be available to all similarly situated individuals regardless of health status. In determining groups of similarly situated individuals, the following distinctions are permissible:. Participation-only wellness programs can vary from group to group of similarly situated individuals, as long as whatever program is offered to a particular group is available to all of the individuals in that group regardless of health status.

For example, the opportunity to earn a reward by completing an HRA could be offered to full-time employees only, but that opportunity would have to be offered to all full-time employees and not just full-time employees who have never been diagnosed with heart disease.

Note that more favorable rules can be established for individuals with adverse health factors than for individuals without such adverse health factors, so it is permissible to discriminate in favor of individuals with an adverse health status. For example, the opportunity to earn a reward by participating in a health coaching session could be offered only to employees who have high blood pressure.

An activity-only program is a program that requires an individual to perform or complete an activity related to a health factor to obtain a reward, but does not require the attainment or maintenance of a specific health outcome. Examples of activity-only programs include walking, diet, and exercise programs.

An outcome-based program is a program that requires an individual to attain or maintain a specific health outcome, such as attaining a specific body mass index or cholesterol level. For either an activity-only or outcome-based health-contingent program to comply with the HIPAA Wellness Program Regulations, it must satisfy the five requirements outlined below.

The actions necessary to comply with each of these five requirements may vary depending on whether the health-contingent program is an activityonly program or an outcome-based program. Technically, a wellness program may be able to avoid some or all of these requirements if it is considered a grandfathered health plan under the ACA, if it is a retiree-only plan, or if it provides only excepted benefits, such as limited-scope dental or vision benefits.

However, practically speaking, most wellness programs do not qualify for one of these exceptions. Wellness program incentives which can be in the form of rewards, discounts, or penalties may directly impact the cost of coverage e.

Wellness program incentives that do not relate to tobacco use are treated as not earned for purposes of these affordability and minimum value determinations. Example 1. Example 2. Employers filing at least W-2 forms must report in Box 12, Code DD, the aggregate cost of applicable employer-sponsored coverage. The cost of coverage provided under a wellness program must be included in the aggregate reportable cost only if the wellness program is a group health plan and the employer charges a COBRA premium for that coverage.

If an employer does not charge a COBRA premium for that coverage, the employer can, but is not required to, include the cost of wellness program coverage in the amount reported on the W For plan or policy years ending before October 1, , employers sponsoring self-insured group health plans must pay PCORI fees, which are intended to support clinical effectiveness research. PCORI fees apply to a wellness program only if the program provides significant benefits in the nature of medical care or treatment.

From through , each state that operates a health insurance exchange was required to establish a temporary reinsurance program for the non-grandfathered plans individual market, to which health insurers and group health plans were required to contribute.

However, reinsurance contributions were not required for a wellness program if the program did not provide major medical coverage. Typical wellness programs that include an HRA, biometric screening, or limited health coaching do not rise to the level of major medical coverage and, therefore, were not subject to the reinsurance contribution requirements.

A wellness program must comply with Title I of GINA if it is itself a group health plan or is part of a group health plan. Applying these definitions, it appears that the following types of wellness programs involve the collection of genetic information as defined under Title I of GINA:. Because GINA prohibits the collection of genetic information for underwriting purposes, which includes changing deductibles or other cost-sharing mechanisms, or providing discounts, rebates, payments in kind, or other premium differential mechanisms in return for activities such as completing an HRA or participating in a wellness program, the types of wellness programs highlighted above may give rise to compliance issues under Title I of GINA.

We discuss below approaches that can be taken to mitigate the GINA Title I risk related to these common wellness program designs. Title II prohibits employers from discriminating against their employees on the basis of genetic information and, subject to limited exceptions, prohibits employers from requesting, requiring, or purchasing genetic information with respect to an employee or a family member of the employee.

The and final regulations GINA Wellness Program Regulations provided much needed clarity regarding the extent to which inducements could be used as part of a wellness program that includes genetic information.

However, the U. Under the GINA Wellness Program Regulations, an employer can request, require, or purchase genetic information about an employee or a family member of the employee if the employer offers health or genetic services, including as part of a voluntary wellness program, and all of the following conditions are satisfied:. Under the GINA Wellness Program Regulations, an employer may not offer any inducement whether financial or in-kind and whether in the form of a reward or penalty for individuals to provide genetic information.

However, an employer may offer inducements for completion of an HRA that includes questions about family medical history or other genetic information, provided the employer makes it clear that the inducement will be made available whether or not the participant answers questions regarding genetic information. These limitations were intended to ensure that participation remained voluntary, without the inducement becoming unduly coercive. An employer may offer financial inducements to encourage individuals who have voluntarily provided genetic information e.

In no case may an employer condition participation in a wellness program on, or provide any inducement in exchange for, an agreement permitting the sale, exchange, sharing, transfer, or other disclosure of genetic information other than transfers to healthcare professionals or genetic counselors providing genetic services or to the individual or family member.

To avoid GINA non-compliance, an employer can consider the following wellness program designs, particularly if it intends to include spouses in an HRA or biometric screening component of the program:. No genetic information program. For a wellness program that is a group health plan or is part of a group health plan and thus is subject to Title I of GINA, no inducement can be offered for the collection of genetic information. As a result, until further EEOC guidance is issued, the only wellness program designs that will definitively comply with Title II of GINA are ones that do not offer any inducement for the collection of genetic information, similar to the wellness program designs described with respect to GINA Title I compliance above.

These types of wellness programs can still include biometric screening and HRA features that employees and spouses are encouraged to complete, but no rewards or penalties would be associated with whether the employee or spouse completes an HRA or biometric screening involving genetic information.

Title I of the ADA has two primary requirements that an employer should consider when designing its wellness program, whether or not the wellness program is itself a group health plan or part of a group health plan: 1 the program must not be discriminatory with respect to disability, and 2 medical examinations and inquiries generally must be voluntary.

An employer cannot discriminate against a qualified employee on the basis of disability with regard to the terms, conditions, and privileges of employment. Reasonable accommodations must be provided, absent undue hardship, to enable employees with disabilities to earn whatever financial incentive an employer offers as part of its wellness program. However, reasonable accommodation under the ADA is also required for a participation-only program even though HIPAA does not require participation-only programs to offer a reasonable alternative standard.

The ADA generally prohibits an employer from requiring medical examinations or making medical inquiries, unless such examination or inquiry is job-related and consistent with business necessity or is voluntary and part of an employee health program.

The ADA Wellness Program Regulations clarified that a program that simply promotes a healthier lifestyle but does not ask any disability-related questions or require medical examinations e.

Under the ADA Wellness Program Regulations, an employer may conduct voluntary medical examinations and inquiries as part of an employee health program such as medical screening for high blood pressure, weight control, and cancer detection , provided that:.

Such an employee health program which may be offered in connection with a wellness program must be reasonably designed to promote health or prevent disease, taking into account all the relevant facts and circumstances. This rule is similar to the standard for health-contingent wellness programs and the reasonable design criterion under GINA described above and generally means that the program:. Specifically, collecting medical information through an HRA without providing employees follow-up information or advice, such as providing feedback about risk factors or using aggregate information to design programs or treat any specific conditions, would not be reasonably designed to promote health.

A program also is not reasonably designed if it exists mainly to shift costs from the employer to targeted employees based on their health. An employer might conclude from aggregate information, for example, that a significant number of its employees have diabetes or high blood pressure and might design specific programs that would enable employees to treat or manage these conditions. Under the ADA Wellness Program Regulations, participation in a wellness program or other employee health program is considered voluntary for this purpose if the employer:.

The extent to which an employer may provide incentives for wellness program participation without jeopardizing its voluntary status is uncertain. The incentive limitations were intended to ensure that participation remained voluntary, without the inducement becoming unduly coercive. An employer cannot require an employee to agree to the sale, exchange, sharing, transfer, or other disclosure of medical information except to the extent permitted by the ADA Wellness Program Regulations to carry out specific activities related to the wellness program , or to waive any confidentiality protections in this part as a condition for participating in a wellness program or for earning any incentive the employer offers in connection with such a program.

Medical information obtained by wellness programs subject to the ADA Wellness Program Regulations may only be disclosed to employers in aggregate form.

Note that a smoking cessation program that merely asks employees whether they use tobacco or whether they ceased using tobacco upon completion of the program is not an employee health program that includes disability-related inquiries or medical examinations.

As such, the vacated incentive limitations in the ADA Wellness Program Regulations would not have applied to such a program.

However, a tobacco-related program that tests for the presence of nicotine or tobacco would be an employee health program that includes disability-related inquiries or medical examinations. As a result, absent the vacated incentive limitations, employers that provide only modest inducements in connection with these types of tobacco-related programs will be subject to incremental risk under the ADA Wellness Program Regulations, but may still comply with the ADA.

The ADA also includes a safe harbor exception to these ADA requirements that permits insurers or other benefit plan administrators including employers to establish or administer benefit plans that are based on underwriting risks.

The U. The EEOC has been active in this area, as noted in the following section. In August , the court ruled that the EEOC had not provided a reasoned explanation for its interpretation of the voluntary requirement, and that the ADA Wellness Program Regulations were therefore arbitrary and capricious. However, in an effort to avoid widespread disruption and confusion among employers sponsoring wellness programs and their employees, the court did not vacate the ADA Wellness Program Regulations at that time.

AARP then asked the court to reconsider its decision not to vacate the ADA Wellness Program Regulations, and the EEOC provided a status report to the court indicating that new proposed regulations would not be issued until August , would not be finalized until October , and would not be effective until In the absence of further EEOC guidance, employers are once again in the uncomfortable position of not knowing with certainty whether and to what extent they can use incentives as part of a wellness program that involves medical examinations and disability-related inquiries.

Rather, the program and associated reward must comply with all applicable rulemaking. The need to comply with these additional legal requirements may be another reason for an employer to structure its wellness program as part of its major medical plan, which should already have compliance mechanisms in place for these requirements.

If a wellness program provides a reward to incentivize participation, the employer also will need to determine the tax treatment of that reward under the Code. A wellness program that is itself a group health plan or part of a group health plan must comply with ERISA.

Some of the primary compliance obligations under ERISA include having a written plan document, distributing a summary plan description and summaries of material modifications to participants, filing a Form if there are more than participants in the plan, and following specific claims and appeals procedure requirements. A stand-alone wellness program will need to determine how to comply with these requirements in its own right.

COBRA continuation coverage must be offered as part of a wellness program that is itself a group health plan or part of a group health plan. An actuary may need to be engaged to determine the fair market value of coverage under the program on which to base any COBRA premium charged. However, identical treatment for wellness program purposes may not be required in certain circumstances:. A stand-alone wellness program will need to determine how it will comply with these requirements in its own right.

However, in some cases an employer may be able to design wellness program rewards that are not taxable to the employee. According to the Code:.



Health Insurance From an Employer

Section of the Patient Protection and Affordable Care Act 42 USC and its implementing regulation provide that an individual shall not be excluded from participation in, be denied the benefits of, or be subjected to discrimination on the grounds prohibited under Title VI of the Civil Rights Act of , 42 U. OCR is responsible for enforcing regulations issued under Section of the Affordable Care Act Section , protecting the civil rights of individuals who access or seek to access covered health programs or activities. Section prohibits discrimination on the basis of race, color, national origin, age, disability, or sex including pregnancy, sexual orientation, and gender identity , in covered health programs or activities. If you believe you have been discriminated against on one of the bases protected by Section , you may file a complaint with OCR. On June 15, , the U. Bostock v. Clayton County, GA , S.

Essential functions are the fundamental job duties that you must be able to perform on your own or with the help of a reasonable accommodation. An employer.

Americans With Disabilities Act: Information for People Facing Cancer

NCBI Bookshelf. The Future of Disability in America. Encompassed in this analysis are issues related to health care access, coverage, and financing. The interaction of the ADA with employment laws governing the health care workforce is considered separately see Appendix E. Any legal analysis involving health care can be daunting, because it entails an examination of the notoriously complicated interaction between law and the health care system. When the focus is on the relationship between civil rights and health care financing, the juncture can be particularly rocky because of the inherent contradictions between health care financing laws on the one hand and the law of civil rights on the other. At their core, the web of laws that together comprise the law of health care financing rests heavily on the law of insurance, which in turn emphasizes the legality of exclusion and risk avoidance. In contrast, civil rights laws enacted to protect persons with disabilities are fundamentally intended to advance the societal embrace of individuals whose health status can carry the potential for a greater consumption of resources. Legal disputes involving the allocation of resources within particular covered populations inevitably operate as a flashpoint for this deep, underlying policy tension. The fundamental purpose of the ADA is to achieve the integration of persons with disabilities into all facets of society, including health care.


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ada employee rights and employer obligations under aca

McGinnis Lochridge lawyers provide legal representation and counsel to employers of all sizes, both private and public. Managing your workforce is a complex and ever-changing challenge, and our Employment Law Practice Group can guide you through it all. We help employers manage and avoid risks by providing current information on changes to federal and state employment laws, as well as practical guidance on compliance. Our Employment Law Practice Group has extensive experience across the full spectrum of employment laws and issues including:. Our Employment Law Practice Group lawyers have deep experience advising clients on compliance with employment laws, developing best practices and pre-litigation counseling.

Determining which employees are full-time employees is central to the employer shared responsibility provisions.

Nondiscrimination Acts

A civil rights law to prohibit discrimination solely on the basis of disability in employment, public services, and accommodations. An education act to provide federal financial assistance to State and local education agencies to guarantee special education and related services to eligible children with disabilities. A civil rights law to prohibit discrimination on the basis of disability in programs and activities, public and private, that receive federal financial assistance. Any individual with a disability who: 1 has a physical or mental impairment that substantially limits one or more life activities; or 2 has a record of such impairment; or 3 is regarded as having such an impairment. Further, the person must be qualified for the program, service, or job.


Employment

Nondiscrimination December 10, For some, stress, anxiety, depression and other mental health issues can be exasperated during the winter months. Here we answer common questions about mental illness in the workplace. A: There are several federal and state laws that may protect workers with disabilities. For example, the federal Americans with Disabilities Act ADA prohibits employers with 15 or more employees from discriminating against qualified applicants and employees because of a physical or mental disability.

In a previous post, we reported on an announcement by Delta Airlines that it would impose a premium surcharge on employees covered under its.

Human Resources Best Practices and Audits: Laws and Regulations to Consider

Official websites use. Share sensitive information only on official, secure websites. Since The Americans with Disabilities Act: Your Responsibilities as an Employer was published, the Supreme Court has ruled that the determination of whether a person has an ADA "disability" must take into consideration whether the person is substantially limited in performing a major life activity when using a mitigating measure.


Employer Mandate

Under the pay or play penalty, an applicable large employer must generally offer full-time employees coverage that is both affordable and of minimum value, or pay an excise tax. Temporary Relief in IRS Notice In IRS Notice , the IRS provided temporary relief that allowed an employer to exclude opt-out payments from the affordability calculation if the employer adopted the opt-out arrangement before December 16, This temporary relief applies for plan years beginning before January 1, or—if later—the effective date of final regulations. In the proposed regulations, the IRS stated that it anticipates issuing final regulations that are effective in

We work in close collaboration with you to define the time frames for referral to the ADA leave administration services that best match the needs of your organization.

The ADA has five titles, two of which directly affect governmental entities. Title I prohibits discrimination in all aspects of employment, and Title II prohibits discrimination in providing public services, programs and activities. Governor Dayton signed Executive Order , providing for Increased State Employment for Individuals with Disabilities on August 4, tasking Minnesota Management and Budget MMB with developing best practices for recruitment and retention for individuals with disabilities. Step 5: Leverage Your Resources. This website includes many resources for helping employees make electronic documents, meetings, social media, and other processes accessible for everyone.

Most individuals infected by the coronavirus recover from the COVID illness after several days or weeks of illness, with no lingering effects. Some, however, report loss of taste or smell, fatigue, shortness of breath, difficulty breathing, dizziness, headaches, difficulty concentrating, depression or anxiety, chronic pain, or other symptoms weeks or even months after the virus load is undetectable in them. Departments of Justice and Health and Human Services issued joint agency guidance that long-haul COVID illness may constitute a disability under federal anti-discrimination laws.


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