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Health Coverage Premium Subsidies: One Step Closer to Extension?

August 4, 2011 – 6:14 pm | By Gwen Cofield | No comments yet

At least in the Senate, a consensus is being reached on trade adjustment assistance that could lead to an extension of premium subsidies under the Health Coverage Tax Credit (HCTC) program. Here are two snippets from a joint statement issued Wednesday:

[Senate Majority Leader Harry Reid (D-Nev.)]: “My staff and Senator McConnell’s staff have been in discussions for weeks over the Trade Adjustment Assistance program and the three outstanding FTAs [free trade agreements]. We believe those discussions have provided a path forward in the Senate after we return for passage of the bipartisan compromise on the Trade Adjustment Assistance program, followed by passage of the three FTAs." [Senate Minority Leader Mitch McConnell (R-Ky.)]: “I agree with the Majority Leader that we have a path forward on TAA and the Free Trade Agreements."

Background on how all this affects an HCTC extension can be found here. Looks like any extension won't happen though, until Congress reconvenes in September.

EEOC: Clarity on Wellness Incentives under GINA; Tongue-tied on ADA

August 4, 2011 – 6:14 pm | By Kathryn McGovern | No comments yet

The U.S. Equal Employment Opportunity Commission (EEOC) once again refused to a take a position on whether employers may use financial incentives to encourage employee participation in wellness programs — without violating the Americans With Disabilities Act (ADA). In an informal opinion letter from the EEOC’s Office of Legal Counsel, the commission assured employers that such an incentive does not violate the Genetic Information Nondiscrimination Act (GINA) … but it would not comment on its legality under the ADA. The letter was written in response to a request for information from an unidentified employer. The employer asked whether it could offer incentives for participation in a workplace wellness program without violating either law. The commission answered the GINA question easily: While employers may not offer financial incentives in return for employees’ genetic information, they many do so to encourage employees to complete a health risk assessment or participate in a disease-management program. Employers must make clear, however, that questions about genetic information are completely voluntary and that individuals need not answer them to receive the incentive. As for the ADA however, the EEOC remains indecisive. “As you know, the Commission has not taken a position on whether, and to what extent, Title I of the ADA permits an employer to offer financial incentives for employees to participate in wellness programs that include disability-related inquiries (such as questions about current health status asked as part of a health risk assessment) or medical examinations (such as blood pressure and cholesterol screening to determine whether an employee has achieved certain health outcomes),” the commission answered. “However, we will carefully consider your comments and the comments of other stakeholders that we have received on this important issue.” In past letters, the EEOC has rejected employers’ attempts to require completion of a health risk assessment in order to enroll in the group health plan, or to get funds from a health reimbursement arrangement. But the EEOC did not rule out any financial inducement, and business groups have urged the commission to bring its ADA standard for “voluntary” in line with its recent GINA rules so employers aren’t jumping through multiple hoops just to send out a questionnaire.

Second Obama WHD Nominee Goes Down in Flames

August 4, 2011 – 4:34 pm | By Margaret Miller | No comments yet

These Queen lyrics fit what’s going on with President Obama’s nominees to the Wage and Hour Division: And another one gone, and another one gone; another one bites the dust! President Obama withdrew the nomination of Leon Rodriguez to be Administrator of the Wage and Hour Division of the U.S. Department of Labor on Aug. 2. Rodriguez was nominated on Dec. 2, 2010, and his nomination has been in limbo ever since. Rodriguez’s nomination was considered by some to be controversial due to his record in his current position as deputy assistant attorney general for the Civil Rights Division of the U.S. Department of Justice, as well as in his prior work. The post of WHD Administrator has been vacant during Obama’s entire term. The post’s duties have been taken on by WHD Deputy Administrator Nancy J. Leppink. The apparent leadership void at WHD “hasn’t stopped DOL from aggressively enforcing employment laws,” including the Fair Labor Standards Act and the Family and Medical Leave Act, noted Shlomo D. Katz, Esq., counsel at the law firm Brown Rudnick LLP. But he wondered if WHD’s apparent reluctance, since June 2010, to issue guidance on how to interpret specific employment laws was related to the empty leadership chair. The last, and only the second, WHD Administrator Interpretation was issued in June 2010, after WHD announced in March 2010 that the AI’s predecessor, the WHD opinion letter, had been eliminated in favor of the AIs. The AIs provide industrywide guidance, instead of public guidance to particular employers about specific questions of interpretation, as the opinion letters had done. Obama’s bad luck with WHD administrator nominees began with his first nominee, Lorelei Boylan, who withdrew after six months waiting to hear from the U.S. Senate’s Committee on Health, Education, Labor and Pensions to call her before them for a nomination hearing. The committee never did. Her nomination was blemished by her involvement with New York Wage Watch, a New York state program launched by M. Patricia Smith, now Obama’s Solicitor of Labor. Rodriguez never got a hearing call from the committee either.