1. Florida Public Human Resources Association (FPHRA) ACA / Wellness General Updates Presented by: Robin Riley, GBA – Vice President Melanie Stegall – Account Executive

3. ADAAA EEOC ACA Updates

4. ADA AA Title 1  Prohibits discrimination in employment against a “qualified individual with a disability”  Applies to private employers with 15+ employees (FT or PT), as well as all state and local government employers

5. Who Is an “Individual With a Disability”?  An individual who:  Has a physical or mental impairment that substantially limits one or more major life activities of such individual  Has a record of such an impairment  Is regarded as having such impairment

6. Who Is a “Qualified Individual With a Disability”?  An individual with a disability who:  Is qualified for a job  With or without reasonable accommodation  Can perform the essential functions of the job

7. ADAAA Timeline  ADAAA  Signed into law Sept. 25, 2008  Went into effect Jan. 1, 2009  Expands several important definitions  ADAAA Regulations  Final rules published Mar. 25, 2011  Following review of over 600 public comments on proposed regulations issued in Sept. 2009  Accompanied by appendix with interpretive guidance as well as Fact Sheet and Q&A  Went into effect May 24, 2011

8. What Does the ADAAA Change?  Broad interpretation of “disability”  Expansive definition of “major life activity”  Limited role of mitigating factors  Lower standard for “regarded as” disabled

9. EEOC Updates 2014  On July 14, 2014, the EEOC issued its long-anticipated Enforcement Guidance on Pregnancy Discrimination and Related Issues.  The Guidance covers the vast expanse of federal workplace laws touching on pregnancy and related conditions, including the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), the Affordable Care Act (ACA), the Family and Medical Leave Act (FMLA), and Executive Order 13152, which prohibits discrimination in federal employment based on parental status. The Guidance is intended to provide a definitive document on the EEOC's position on pregnancy. Its refrain: pregnant employees are entitled to accommodation under both the PDA and the ADA.

10. EEOC Update  The PDA requires accommodations for pregnant women, regardless of the severity of their pregnancy-related work limitations, if the types of accommodations are provided to other employees with similar abilities or inabilities to work. The Guidance incorporates the concepts of "reasonable accommodation" and "undue hardship" into the analysis of an accommodation request. It also provides several examples of what the EEOC considers reasonable accommodations for restrictions arising out of pregnancy.  The ADA requires accommodation of pregnancy-related disabilities, regardless of their relationship to a healthy and routine pregnancy. The assertion that "an impairment's cause is not relevant in determining whether the impairment is a disability" could nullify the provision of the ADA regulations stating that pregnancy is not an impairment. Thus, following this approach, conditions present to some degree in most pregnancies, such as balance issues, morning sickness, and changes in body size, could qualify for accommodations under the ADA.

11. EEOC Update  The PDA requires accommodations for pregnant women where non- pregnant similarly abled or disabled individuals have received accommodations, regardless of whether the accommodations result from laws like the ADA, a policy that prioritizes workplace injuries over other physical limitations, or an employer's choice free from any legal obligations on the matter. The EEOC declares that an employer may not confine light duty to those suffering from workplace injuries, but must provide light duty to pregnant employees who need it as well. In doing so, the EEOC explicitly rejects contrary cases from at least four federal circuit courts of appeals. The Guidance concludes that employers should now abandon policies requiring different treatment for employees injured on the job and employees with similar disabilities due to pregnancy.  Common employer policies, such as a policy that restricts sick leave to only 10 days, may disparately impact pregnant women. It is likely that a number of pregnancy-related impairments that impose work restrictions will be substantially limiting for ADA purposes, even if temporary, and provides multiple examples.

12. Affordable Care Act  For many employers, 2016 will bring new requirements and challenges with respect to Affordable Care Act (ACA) compliance. However, their burden in years beyond 2016 may very likely diminish because of recent changes Congress made to the sweeping health care law. While this year the U.S. Supreme Court once again saved the fate of the ACA in the King v. Burwell decision, legislation repealing or delaying some of the law's most problematic provisions potentially reshapes the scope and impact of the law for both employers and employees.

13. Cadillac Tax Delay  Congress has approved a spending and tax extenders bill that includes a two-year delay until 2020 of the ACA's "Cadillac" excise tax on high-cost health plans. The 40% excise tax on high-premium "Cadillac" health insurance plans, which was set to take effect in 2018, applies to plans costing more than $10,200 for individual-only coverage, and more than $27,500 for family coverage.  Although referred to as a tax on Cadillac plans, its impact is far broader and would likely snare many "middle-of-the-road" employer-sponsored plans that may not be considered particularly "rich" plans. The 2016 Consolidated Appropriations Act and tax extenders measure also makes payment of the excise tax deductible.

14. Repeal of Automatic Enrollment  The Bipartisan Budget Act of 2015, which suspends the debt ceiling limit until March 2017 and raises budget levels, contains measures to generate revenue to pay for the spending hikes. One such offset to pay for the spending increases was a repeal of the ACA's automatic healthcare enrollment requirement. This ACA provision would have required employers with more than 200 full-time employees to automatically enroll their employees in health coverage unless the employees opted out.  Repeal of the provision raises almost $8 billion in revenue because, absent automatic enrollment, fewer employees are expected to enroll in employer health plans. This in turn converts tax-privileged dollars otherwise spent on health benefits into taxable wages.

15. Employer "Play-or-Pay" Mandate Becomes Fully Effective Although the employer shared responsibility or play-or-pay mandate was to become effective in 2014, the IRS delayed this requirement until January 1, 2015 for employers with 100 or more full-time and full-time equivalent employees. For employers with between 50 and 99 full-time and full-time equivalent employees, the employer mandate was delayed until 2016. For those employers above the 99 full-time employee threshold, 2015 brought the challenge of complying with employer mandate and its complex regulations for determining full-time employer status. However, the challenge and penalties for such employers increases in 2016. Transitional rules to ease implementation of the employer mandate that were in effect for 2015 are now gone. Therefore, in 2016, applicable large employers above the 99 full-time employee threshold will face the full implementation of the employer mandate, and those employers with between 50 and 99 full-time and full- time equivalent employees will face implementation of the employer mandate for the first time.

17. Wellness Programs & GINA  On May 17, 2016, the U.S. Equal Employment Opportunity Commission (EEOC or the Commission) issued a final rule to amend regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA) as they relate to employer wellness programs.  The final rule says employers may provide limited financial and other inducements (also called incentives) in exchange for an employee's spouse providing information about his or her current or past health status as part of a wellness program, whether or not the program is part of a group health plan.

18. Why The Update?  There is an exception to GINA's general prohibition against acquiring genetic information of applicants or employees where employers offer voluntary health or genetic services to employees or their family members. Some employers want to offer inducements for employees and their family members to answer questions about their health or to take medical examinations as part of a wellness program.  This rule clarifies that an employer may offer a limited incentive for an employee's spouse to provide information about the spouse's current or past health status as part of a voluntary wellness program.

19. Purpose Of The Rule  The final rule clarifies that an employer may offer a limited incentive (in the form of a reward or penalty) to an employee whose spouse receives health or genetic services offered by the employee -- including as part of a wellness program -- and provides information about his or her current or past health status.  This kind of information usually is provided as part of a HRA, which may include a questionnaire or medical examination, such as a blood pressure test or blood test to detect high cholesterol or high glucose levels.

20. Reasonably Designed Program

21. Wellness Programs & Group Health Plans  The final rule applies to all wellness programs, regardless of whether the wellness program is offered through a group health plan. Even if an employer offers no group health plan at all, it may still offer limited inducements for an employee's spouse to participate in wellness programs that ask for current or past health information.

22. Additional Updates  The final rule includes a new paragraph that prohibits employers from denying access to health insurance or any package of benefits to, or retaliating against, any employee whose spouse refuses to provide information about his or her current or past health status to an employer wellness program.  As with the proposed rule, the final rule also makes clear that an employer is permitted to request information about the current or past health status of an employee's spouse who is completing a HRA on a voluntary basis, as long as the employer follows GINA rules about requesting genetic information when offering health or genetic services. These rules include requirements that the spouse provide prior, knowing, written, and voluntary authorization for the employer to collect genetic information, just as the employee must do, and that inducements in exchange for this information are limited.

23. Effective Date  The provisions of the final rule related to wellness program inducements will apply only prospectively to employer-sponsored wellness programs as of the first day of the first plan year that begins on or after January 1, 2017, for the health plan used to determine the level of inducement permitted under this rule.

24. Wellness Programs & ADA  On May 17, 2016, the U.S. Equal Employment Opportunity Commission (EEOC or the Commission) issued a final rule to amend regulations implementing Title I of the Americans with Disabilities Act (ADA) as they relate to employer wellness programs.

25. Purpose Of The Rule  Before this final rule was issued, EEOC's ADA regulations stated that employers may make inquiries and conduct medical examinations that are part of a voluntary health program but did not define the term "voluntary" or explain what constitutes a "health program." The regulations also did not say whether the ADA allows employers to offer incentives to encourage employees to participate in such programs. EEOC issued this rule to provide guidance on the extent to which employers may offer incentives to employees to participate in wellness programs that ask them to answer disability- related questions or undergo medical examinations.  The rule also explains the differences between the ADA's requirements for voluntary health programs and other federal laws, such as the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Patient Protection and Affordable Care Act (Affordable Care Act), which governs wellness programs that are part of a group health plan.

26. Relation To Wellness Programs  In issuing this final rule, EEOC sought to provide consistency with HIPAA and the Affordable Care Act rules on wellness program incentives, while also ensuring that incentives would not be so high as to become coercive and render participation in the program involuntary.  The ADA also regulates certain aspects of wellness programs that HIPAA and the Affordable Care Act do not. Consequently, there are some differences between this rule and the wellness program rules under HIPAA and the Affordable Care Act.

27. ADA Safe Harbor Provision  The ADA's safe harbor provision allows insurers and plan sponsors (including employers) to use information, including actuarial data, about risks posed by certain health conditions to make decisions about insurability and about the cost of insurance.  Such practices have to be consistent with laws governing insurance and cannot be a subterfuge to evade compliance with the ADA. Without the safe harbor, these practices would violate the ADA by treating some individuals with disabilities less favorably than individuals without those disabilities.  The safe harbor provision does not apply to employer wellness programs, since employers are not collecting or using information to determine whether employees with certain health conditions are insurable or to set insurance premiums. The final rule adds a new provision explicitly stating that the safe harbor provision does not apply to wellness programs even if they are part of an employer's health plan.

28. Voluntary Participation The final rule lists several requirements that must be met in order for an employee's participation in a wellness program that includes disability-related inquiries or medical examinations to be considered voluntary. Specifically, an employer:  may not require any employee to participate;  may not deny any employee who does not participate in a wellness program access to health coverage or prohibit any employee from choosing a particular plan; and  may not take any other adverse action or retaliate against, interfere with, coerce, intimidate, or threaten any employee who chooses not to participate in a wellness program or fails to achieve certain health outcomes. Additionally, in order to ensure that an employee's participation is voluntary, an employer must provide a notice that clearly explains what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure.

29. Incentive Limits  If a wellness program is open only to employees enrolled in a particular plan, then the maximum allowable incentive an employer can offer is 30 percent of the total cost for self-only coverage of the plan in which the employee is enrolled.  When an employer offers more than one group health plan but participation in a wellness program is open to all employees regardless of whether they are enrolled in a plan, the employer may offer a maximum incentive of 30 percent of the lowest cost major medical self-only plan it offers.  If an employer does not offer health insurance but wants to offer an incentive for employees to complete a HRA or to have annual tests that check their glucose and cholesterol levels, the employer could offer an incentive up to 30 percent of the cost that a 40-year-old non-smoker would pay for self-only coverage under the second lowest cost Silver Plan on the state or federal health care Exchange in the location that the employer identifies as its principal place of business.

30. Smoking Cessation  The final rule makes a distinction between smoking cessation programs that require employees to be tested for nicotine use and programs that merely ask employees if they smoke. A wellness program that merely asks employees whether or not they use tobacco (or whether they ceased using tobacco by the end of the program) is not a wellness program that asks disability-related questions. Therefore, the rule's 30 percent incentive limit does not apply and, an employer can offer an incentive up to 50 percent of the cost of self-only coverage, consistent with HIPAA, as amended by the Affordable Care Act.  However, where an employer requires any biometric screening or other medical procedure that tests for the presence of nicotine or tobacco, the rule's 30 percent incentive limit applies.

31. Confidentiality The final rule does not change language concerning confidentiality (including any exceptions to confidentiality) that was already part of EEOC's existing ADA regulations, with two new requirements.  First, a covered entity only may receive information collected by a wellness program in aggregate form that does not disclose, and is not reasonably likely to disclose, the identity of specific individuals except as is necessary to administer a health plan.  Second, an employer may not require an employee to agree to the sale, exchange, sharing, transfer, or other disclosure of medical information, or to waive confidentiality protections under the ADA as a condition for participating in a wellness program or receiving an incentive for participating, except to the extent permitted by the ADA to carry out specific activities related to the wellness program.

32. Questions