Legal Updates – February 2021

EEOC Proposes Regulations for Wellness Programs

On January 7^th, 2021, the Equal Employment Opportunity Commission (“EEOC”) released proposed new regulations under the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”) for employer-offered wellness programs.  Employers generally offer wellness programs to promote healthy habits, increase productivity, and reduce disease and health plan costs within their workforce.  Depending on the design of the program and whether incentives are offered, wellness programs raise a number of issues under various federal laws, including ERISA, HIPAA, the ADA, GINA, COBRA, and anti-discrimination laws like the ADEA and Title VII of the Civil Rights Act.

Background

In the last 20 years, the following rules have been of particular concern for wellness programs that offer incentives, such as a discount on health plan premiums or prizes:

• The Health Insurance Portability and Accountability Act (“HIPPA”) prohibits discrimination on the basis of a health factor, a medical condition, medical history, or genetic information.
• The ADA requires reasonable accommodations for disabilities and prohibits disability-related medical examinations unless they are “voluntary.”
• GINA prohibits employers from requesting or using genetic information, which includes family medical history, unless the information is provided “voluntarily.”

The concern is that a person who fails to satisfy the required conditions for the wellness program, and thereby does not receive the wellness plan incentive, is penalized.  The program would, therefore, discriminate on the basis of a health factor.

HIPPA Regulations

Longstanding HIPPA regulations provide a roadmap for wellness programs compliance with HIPAA’s non-discrimination rules.  These regulations divide wellness plans into two categories:

1. Participation-Only Wellness Programs. These include wellness programs that do not require participants to achieve a specific health outcome, but instead simply require them to take a certain action.  Examples include reimbursement for gym membership or offering an incentive to obtain a flu shot, submit to a biometric screening, or take a health risk assessment.  HIPAA does not impose any requirements upon these types of programs other than require that they be made available to similarly situated participants.  These types of programs are regulated by, and the target of, new guidelines under the ADA, discussed below.
2. Health Contingent Wellness Programs. Such programs have incentives conditioned on performing an activity related to a health factor or achieving a health factor target.  A health contingent program can be “activity-based” or “outcome-based.”  An activity-based incentive is conditioned on completing an activity related to a health factor, such as daily exercise, without any requirement to achieve a particular outcome.  An outcome-based incentive is conditioned on achieving an outcome, such as reducing cholesterol levels or Body Mass Index (BMI).

The HIPAA regulations allow incentives for participatory programs without restriction provided they are offered to everyone.  Health contingent programs, however, must satisfy the following requirements:

• The program must be reasonably designed to promote health or prevent disease.
• The program must be made available to all similarly situated individuals and provide opportunities to qualify for the incentive at least annually.
• The value of the incentive must not exceed 30% of the applicable heath insurance premium. The percentage may be up to 50% for tobacco cessation programs.
• The program must offer reasonable alternatives for individuals for whom meeting the required standard is unreasonably difficult due to a medical condition.

Although the HIPAA regulations provided clear standards for wellness programs, the EEOC warned that even if a program complies with the HIPAA regulations, it may not comply with separate requirements under the ADA, GINA, or other federal laws.  For example, incentives to test for conditions like BMI and cholesterol might violate the ADA’s prohibition against medical examinations that are not voluntary, or that offering incentives to complete a health risk assessment that includes family medical history might violate GINA’s prohibition against involuntary collection of genetic information.

The Proposed Regulations

The EEOC proposed two sets of regulations, one under the ADA and one under GINA.

ADA

As previously mentioned, the ADA requires that any employer-sponsored wellness program be “voluntary.”  However, for years employers have struggled to understand what level of incentives in wellness programs might be considered voluntary.  The ADA proposed rule maintains the spirit of the EEOC’s basic position on voluntariness, that is, allowing too high an incentive would make employees feel coerced to disclose protected medical information.

The general rule for covered wellness programs under the ADA proposed rule is that employers may offer no more than de minimis incentives to encourage employees to participate.  Such programs may not:

• Require employees to participate,
• Deny employees access to health coverage under any of their group health plans,
• Limit coverage under their group health plans for such employees except as otherwise permitted, or
• Take other adverse action against employees who choose not to participate in the wellness program.

According to the EEOC, a de minimis incentive could include a water bottle or a gift card of modest value.  It would be too great an incentive and violate the ADA if an employer were to pay for an employee’s annual gym membership or reward an employee with airline tickets.

There is, however, a “safe-harbor” exception to the de minimis rule.  As proposed, a wellness program can qualify for this safe harbor if the following conditions are met:

1. The program is designed based on risks and not as a subterfuge to evade the purposes of the ADA’s equal employment provisions.
2. The program is a health contingent program that is integrated into a group health plan that is subject to the HIPAA regulations. Factors for determining whether a program is integrated into a group health plan include, for example, whether the incentive is limited to employees enrolled in the plan, whether the incentive is tied to cost sharing or premiums under the plan, whether the program’s vendor has a contract with the plan, and whether the plan includes the welfare program as a term of coverage.
3. The value of the incentive falls within the limit set by the HIPAA rules (30% of the cost of coverage, or 50% for programs designed to reduce tobacco use).

GINA

GINA prohibits employers from collecting “genetic information” from employees.  Under the proposed rule, employers can offer incentives to encourage employees, their spouses, or their children to provide genetic information, but those incentives must be no more than de minimis.  Note, however, that the proposed GINA regulations do not contain a safe harbor exception.  Accordingly, incentives that are more than de minimis may not be conditions on an employee providing family medical or other genetic information.  For example, if an incentive is offered to complete a health risk assessment, employees would need to be told that they can qualify for the incentive even if they do not respond to the questions requesting family medical history or other genetic information.

Final Considerations

The proposed regulations attempt to balance the need to prohibit incentives that have a coercive effect while still allowing some wellness programs that rely on testing and health risk assessments that could help control plan costs.  The EEOC has set a sixty-day public comment period and may adjust regulations after considering submitted comments concerning the proposed rules.  Until then, employers should continue to review their current wellness programs for compliance with existing guidance.

 

Boston Mayor Marty Walsh Slated for Secretary of Labor

On January 7^th, then President-elect Joe Biden, announced that he nominated Boston Mayor Marty Walsh to serve as the nation’s next Secretary of Labor.  If confirmed, Mayor Walsh will be a stark contrast to incumbent Labor Secretary, Eugene Scalia, who was a longtime management attorney.  Walsh has a long background in organized labor, serving as the president of Laborers’ Union Local 223 prior to being elected Mayor.

As Secretary of Labor, Walsh will be likely be tasked with implementing many of the policy changes the Biden administration seeks, such as increased hourly wages, pay equity, paid leave, and workplace safety.  Walsh’s tenure as Mayor of Boston provides some insight into what employers can expect from him as Labor Secretary:

1. Ties to Organized Labor – Mayor Walsh joined the Laborers’ Union Local 223 as a tradesman at age 21 and, as mentioned above, eventually became its president. His background in union leadership will certainly influence his priorities as Labor Secretary.  Shortly after the nomination announcement, Walsh tweeted, “Working people, labor unions, and those fighting every day for their shot at the middle class are the backbone of our economy and of this country.  As Secretary of Labor, I’ll work just as hard for you as you do for your families and livelihoods.”
2. Fifteen-dollar minimum wage – Mayor Walsh assembled a Minimum Wage Task Force to push for a statewide $15 per hour minimum wage. Massachusetts is now in the process of mandating a $15 minimum wage, which will go into effect on January 1, 2023 and have gradual increases each year until then.  Current federal minimum wage is $7.25.
3. Paid Family and Medical Leave – Massachusetts recently began offering paid family and medical leave benefits and Mayor Walsh was a strong supporter of these efforts.
4. Workplace Safety – Mayor Walsh has focused on worker safety during the COVID pandemic. Boston, one of many cities hard hit by COVID-19, has consistently been more conservative than the rest of Massachusetts in its reopening.  Boston has been slower to increase office capacity limits and to reopen certain businesses like fitness centers and restaurants.  Boston also introduced free, asymptomatic COVID-19 testing in an effort to contain the spread of the virus.  Additionally, city employees who are eligible for benefits receive one hour’s pay every two weeks for their time spent getting tested.
5. OSHA – As Secretary of Labor, Walsh will increase the number of OSHA inspectors to fulfill a promise of the Biden administration. The number of inspectors is currently the lowest number of inspectors in OSHA’s forty-nine-year history.
6. Wage and Hour – President Biden has expressed support for aggressive enforcement against employers who misclassify employees as independent contractors so that they can deny benefits. It is likely that as Secretary, Walsh will rescind the new regulations on worker classification recently issued by the Trump Administration.

Conclusion

The nomination of Mayor Walsh as Secretary of Labor is a big win for unions.  But fear not employers.  His track record as Mayor of Boston also indicate that employers may be able to look forward to reasonable and practical changes.

 

Colorado Law Intended to Allow Public Access to Police Internal Affairs Files Falls Short

Gross police misconduct has been all over the news month after month this past year.  The world now knows the names George Floyd, Breonna Taylor, Jacob Blake, Elijah McClain and so many more because of their tragic deaths at the hands of police.  Before the country turned its attention to police brutality, there was the 2016 arrest of Darsean Kelley in Aurora that led to a change in police accountability here in Colorado.  Kelley, who is Black, was detained by police on February 19, 2016.  Kelley’s hands were raised, and his back was turned away from the officer when police struck him in the back with a Taser after Kelley asked the officer, “What are we being detained for?  Answer my question, officer.  I know my rights!”  The difficulty that Kelley’s family faced in obtaining records of how the Aurora Police Department investigated the conduct of the officers involved was the impetus for House Bill 19-1119 (“HB 19-1119”).  It has been almost two years since Gov. Jared Polis signed the police accountability law intended to make it easier for the public to obtain the internal investigation file of a peace officer for “in-uniform or on-duty conduct that involves a member of the public.”  Unfortunately, loopholes in the law allow police departments to deny many of the open records requests.

Background

According to a 2018 study by the University of Denver’s Strum College of Law, nearly all Colorado sheriff’s offices and police departments routinely rejected requests for internal affairs files.  HB 19-1119, which was signed into law April 12, 2019, established a statewide presumption of openness for Colorado law enforcement agencies’ internal affairs investigation reports.  Prior to the enactment of this law, agencies could withhold records of completed internal affairs investigations by finding that disclosures would be “contrary to the public interest.”  Most Colorado police departments and sheriff’s offices routinely made such findings or had policies that made internal affairs files off-limits to the public by classifying them “confidential.”

House Bill 19-1119

HB 19-1119 only applies to records “related to a specific, identifiable incident of alleged misconduct involving a member of the public” while an officer is in uniform or on duty.  The entire investigation file is available to the public, once requested, including witness interviews, video and audio recordings, transcripts, documentary evidence, investigative notes, and a final departmental decision.  The custodian of the file is permitted to first provide just a summary of the file.

This law closed one loophole that some law enforcement agencies used to deny requests for internal affairs records.  The Colorado Open Records Act (“CORA”) states that “personnel files” are confidential and, therefore, are exempt from open records requests.  HB 19-1119 states that internal investigation records examining an officer’s in-uniform or on-duty interactions with a member of the public do not fall within CORA’s definition of “personnel files.”

Prior to providing access to the internal investigation file, either the summary or the file in its entirety, certain information must be redacted, including: Social Security numbers, driver’s license or passport numbers; information that identifies confidential informants, witnesses, or victims; and a law enforcement officer’s home address, personal phone number and personal email address.  Additional information that may be withheld include: compelled statements made by officers who are the subject of a criminal investigation; videos or photographs that raise substantial privacy concerns; the identity of officers who volunteered information but who are not the subject of the internal investigation; specific information that would reveal confidential intelligence information or security procedures; and internal investigation files if there is an ongoing criminal case against the officer who is the subject of the investigation.  The person who requested the file can also ask for a written explanation for any redaction.

If a request for a completed internal affairs file is denied, the requester can file a lawsuit in district court.  A judge will make an independent assessment of whether the records were improperly withheld.  This law only applies to internal investigations initiated after April 12, 2019.

Problems with HB 19-1119

Though HB 19-1119 was a monumental step forward in police accountability in Colorado, the narrow scope significantly limits its potential.  One must have prior knowledge of an incident of possible misconduct involving a civilian.  Due to legislative compromises needed to get the law passed, HB 19-1119 only applies to records “related to a specific, identifiable incident of alleged misconduct involving a member of the public” while an officer is in uniform or on duty.  Denver Post reporter Elise Schmelzer explained that “you have to know about a specific incident to request the records,” and the difficulty is that “you don’t know what you don’t know.”

The limitations of the law prevent reporters or other members of the public from obtaining a list of complaints filed or summaries of all internal affairs investigations initiated and completed since the bill’s effective date.  Such requests have been denied because they did not identify “a specific incident” or because they were not limited to “internal investigations involving a member of the public” or simply that they were “vague.”  Even some requests citing specific incidents have been rejected.  January 2020, the town of Severance denied a reporter’s request for records related to the suspension of the police chief and the departure of a sergeant because the complaints against them “had nothing to do with an external complaint from a citizen, or more specifically alleged misconduct involving a member of the public.”  (For more on this story, read on here.)

The public should be informed of the outcome of internal investigations regarding police misconduct.  Freely releasing these records would increase transparency, accountability and would go a long way in building trust between law enforcement agencies and the communities they serve.  Denver District Court Judge Catherine A. Lemon wrote in a 2005 ruling against the Denver police department:

There are several key factors that lead police officers to be frank and open in internal affairs investigations, and promises of confidentiality are not among them.  Internal affairs secrecy contributes to the “code of silence” or “blue wall”, by creating the expectation that things will be kept in house and away from objective outsiders.  Open access to internal affairs files enhances the effectiveness of internal affairs investigations, rather than impairing them.  Knowing that they will be scrutinized makes investigators do a better job and makes them and the department more accountable to the public.  Transparency also enhances public confidence in the police department and is consistent with community policing concepts and represents the more modern and enlightened view of the relationship between police departments and the communities they serve.

HB 19-1119 is a step in the right direction, but more needs to be done to increase access to internal investigation findings so that the public can hold the police and law enforcement agencies accountable for misconduct.