Wellness programs in the workplace are generally based on the belief that as employees lose weight, stop smoking, eat more healthfully, and lower their cholesterol, their employer will reap a drop in absenteeism and health care costs. With that hope in mind, employers are often willing to offer a financial reward to encourage employees’ participation. The Equal Employment Opportunity Commission (“EEOC”) has long been concerned about whether the financial reward offered makes such wellness programs “involuntary” such that the wellness programs fail to comply with the Americans with Disabilities Act (“ADA”) and/or the Genetic Information Nondiscrimination Act (“GINA”). Previous S&J blog posts have reported the EEOC’s actions with respect to wellness programs over the years, including the EEOC’s issuance of final ADA and GINA regulations addressing wellness programs. Those regulations have been challenged in court by the AARP, and you can expect changes in the regulations as a result. This post will bring you up to speed on the litigation and what you should watch for going forward.
A pension plan participant’s challenge to his benefit amount was recently struck down by the United States Court of Appeals for the Third Circuit. The court acknowledged that retirement plans are complex documents comprised of hundreds of pages, appendices, and “peculiarities.” The issue on appeal before the court was examining whether the terms of the plan were merely complex or ambiguous.
On June 5, 2017, the U.S. Supreme Court in Advocate Health Care Network, et al. v. Stapleton et al., 581 U.S. ___ (2017), answered whether a church must have originally established an employee benefit plan for it to qualify as an exempted “church plan” under ERISA, to which the Supreme Court answered, no. The Supreme Court held that “a plan maintained by a ‘principal purpose organization’ qualifies as a ‘church plan,’ regardless of who established it.”
With the recent election, the fate of the ACA is uncertain. However, we can be fairly certain that, whatever the changes may be, it is unlikely that we will return to life as it was prior to the enactment of the ACA on March 23, 2010. What the “new” ACA will look like, we can’t know, so it is important to continue to be compliant with the laws and regulations as they are currently, unless and until those laws and regulations change.
On May 17, 2016, the U.S. Equal Opportunity Commission (EEOC) issued an ADA Final Rule amending applicable regulations and interpretive guidance implementing Title I of the Americans with Disabilities Act (ADA), and a GINA Final Rule, under Title II of the Genetic Information Nondiscrimination Act (GINA), clarifying how the ADA and GINA Rules apply to employer wellness programs. In addition, the EEOC issued a Q & A document for each new rule, ADA Rule Q & A and GINA Rule Q & A, addressing key questions about each rule’s applicability and implementation.
We have previously discussed The Importance of the Official Plan Document including the uncertainty of whether one document could perform double duty as “the Plan document” and the summary plan description (“SPD”). While it is still “not a sure bet” as to how the U.S. Supreme Court would rule, a recent ruling has held that the SPD can, in fact, be the governing plan document.
It is now a part of the strategic business plan for most employers to have implemented some form of wellness program for their employees. These programs are intended to improve the health of employees with the goal of preventing sickness and motivating employees to lead healthier lives. From the employer’s perspective, these programs are aimed toward the critical financial goals of decreasing (i) the rising cost of healthcare, (ii) illness related absenteeism, and (iii) reduced performance while at work. Often, these programs include wellness screening tasks, including the collection of biometric data (height, weight, blood pressure, cholesterol, and blood glucose levels) to identify health risks. It is estimated that 80% or more of employers with a wellness program screen their employees for evaluation and preventive interventions. As part of the wellness landscape, however, the Equal Employment Opportunity Commission (EEOC) has been challenging employer wellness programs for allegedly violating the Americans with Disabilities Act (ADA).
On May 18, 2015, the U.S. Supreme Court in Tibble, et al. v. Edison International et al, unanimously held that there is a continuing duty under ERISA for fiduciaries to monitor and remove imprudent investments. With this ruling, the Supreme Court vacated a 9th Circuit case which had held that, under ERISA’s 6-year statute of limitations, a claim alleging a breach of fiduciary duty concerning a plan investment initially selected outside the 6-year statutory period could only be brought if there was a change in circumstances which would trigger a fiduciary to re-examine the fund’s inclusion in the plan. The Supreme Court ruling also – in effect – reversed similar prior rulings in the 4th and 11th Circuits. Essentially, for all intents and purposes going forward, the Supreme Court ruling in Tibble provides for a rolling 6-year fiduciary liability window for a violation of the continuing duty to monitor investments.
The Supreme Court of the United States recently vacated a decision that made an employer responsible for the lifetime costs of its retirees’ health benefits, despite there being no language in the labor agreement with the union stating that the employer had this responsibility. The Court sent the case back to the appellate court to determine whether the parties intended for the employer to pay for all of the retiree health care costs in perpetuity.
“Every employee benefit plan shall be established and maintained pursuant to a written instrument.” That is the first sentence in ERISA’s fiduciary responsibility provision. The ERISA-mandated “written instrument” – the official plan document – is a powerful document; it defines the employer’s contractual undertaking with respect to the plan’s participants. In recent decisions, courts have distinguished between a writing that is enforceable as “the plan” and other plan-related instruments such as the summary plan description (“SPD”), an insurance policy, or an administrative services agreement (“ASA”).