Welcome To Our Employment And Benefits Law Blog

Lawyers at Aiken And Aiken

Our firm counsels and represents employers in both employment and employee benefits matters – assisting companies so they can concentrate on their core business and leave the worrying about legal and regulatory problems to us. Employee benefits law encompasses things like health plans, pension plans, executive compensation plans and other benefit programs that employers offer employees. Employment matters include federal laws like FMLA, ADA, ADEA as well as the employment cycle from hiring to firing employees and everything in between.

Department of Labor Releases New Model COBRA Subsidy Extension Notices

January 14th, 2010

The Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) COBRA page has the model notices updated for the extension provisions of the 2010 Department of Defense Appropriations Act now available.

The notices can be found here:

http://www.dol.gov/ebsa/COBRAmodelnotice.html

Healthcare Coverage Period Extended from 9 months to 12 Months under Illinois Law

July 29th, 2009

Under the recently enacted House Bill 2325 signed into law on June 18, 2009, healthcare coverage under Illinois state law was extended from 9 months to 12 months.

With all of the other changes made by House Bill 2325, many employers have not realized the importance of this change.  This change is effective for all group plans subject to the continuation laws that are issued, delivered, amended or renewed after June 18, 2009.

This means that if an employer renews its policy after June 18, 2009, all individuals currently receiving state continuation coverage would be entitle to an additional 3 months of coverage, regardless of the date the individual first elected state continuation coverage .

All employers should be aware of this change and update their current procedures to accolade this change.  Additionally, employers should notify all employees and all former employees who are subject to the extension of this new length of continuation coverage.

EEOC Opinion Letter – Requiring a HRA in Order to Obtain ERISA Plan Health Coverage Violates the ADA

May 12th, 2009

The U.S. Equal Employment Opportunity Commission (EEOC) issued an opinion letter in March which recently became public regarding the use of health risk assessments (HRA) and the Americans with Disability Act (ADA).  While opinion letters from the EEOC are not official opinions, this letter does provide guidance for employers to clarify the use of HRAs.

The letter indicates an employer’s requirement that employees participate in a health risk assessment in order to obtain coverage under the employer’s self-funded health plan violates the ADA.  The circumstances that the EEOC official assessed were where the employer had employees take an assessment that involved answering a short health-related questionnaire, taking a blood pressure test, and providing blood for use in a blood panel screen.  Information from the assessment went directly and exclusively to the employee, and the employer received only aggregate information.  Employees who declined to participate in the assessment and their family members became ineligible for coverage under the health plan.

The ADA requires disability-related questions or medical examinations to be job-related and consistent with necessity or, part of a voluntary wellness program.  The EEOC stated that in the above instance, the HRA was neither job-related nor consistent with necessity.  As part of a wellness plan, refusing to participate in an HRA would penalize an employee, violating ADA.

However, the letter did reaffirm that disability-related inquiries and medical examinations are permitted as part of a voluntary wellness program, and that a wellness program is voluntary if employees are neither required to participate nor penalized for non-participation.  In the case the EEOC considered, employees were both required to participate and were penalized for non-participation.  The opinion letter may be found here.

This is important guidance in clarifying what an employer can and cannot do with regarding to its wellness efforts.  Please contact us if you have any questions or need more information on this letter or other wellness guidance.

EEOC Opinion Letter – An ERISA Plans Requirement of a HRA to in Order to Obtain Health Coverage Violates the ADA

May 11th, 2009

The U.S. Equal Employment Opportunity Commission (EEOC) issued an opinion letter in March which recently became public regarding the use of health risk assessments (HRA) and the Americans with Disability Act (ADA).  While opinion letters from the EEOC are not official opinions, this letter does provide guidance for employers to clarify the use of HRAs.

The letter indicates an employer’s requirement that employees participate in a health risk assessment in order to obtain coverage under the employer’s self-funded health plan violates the ADA.  The circumstances that the EEOC official assessed were where the employer had employees take an assessment that involved answering a short health-related questionnaire, taking a blood pressure test, and providing blood for use in a blood panel screen.  Information from the assessment went directly and exclusively to the employee, and the employer received only aggregate information.  Employees who declined to participate in the assessment and their family members became ineligible for coverage under the health plan.

The ADA requires disability-related questions or medical examinations to be job-related and consistent with necessity or, part of a voluntary wellness program.  The EEOC stated that in the above instance, the HRA was neither job-related nor consistent with necessity.  As part of a wellness plan, refusing to participate in an HRA would penalize an employee, violating ADA.

However, the letter did reaffirm that disability-related inquiries and medical examinations are permitted as part of a voluntary wellness program, and that a wellness program is voluntary if employees are neither required to participate nor penalized for non-participation.  In the case the EEOC considered, employees were both required to participate and were penalized for non-participation.  The opinion letter may be found here.

This is important guidance in clarifying what an employer can and cannot do with regarding to its wellness efforts.  Please contact us if you have any questions or need more information on this letter or other wellness guidance.

New I-9 Form Required Effective April 3, 2009

April 5th, 2009

The U.S. Citizenship and Immigration Services (USCIS) amended the regulations governing the use of Form I-9 – Employment Eligibility Verification – at the end of last year.  The new regulations had an original compliance date of beginning February 2, 2009.  However, USCIS delayed the implementation of the new regulations until April 3, 2009.  These regulations apply to employees hired on or after the implementation date and for employees who require reverification on or after the implementation date.

Numerous changes and updates were made to the existing I-9 form.  Some of the most noteworthy changes include:

  • Expired documents are no longer acceptable for Form I-9 purposes. Employers may no longer accept expired U.S. passports or List B documents as proof of identity and/or employment authorization.
  • The Section 1 status boxes now include separate selections for U.S. nationals and U.S. citizens. Prior to this update, Form I-9 grouped U.S. nationals and U.S. citizens into one category. The new form now separates these individuals into separate categories. U.S. nationals are individuals born in American Samoa, certain former citizens of former Trust Territory of the Pacific Islands, and certain children of U.S. nationals born abroad.
  • Certain List A identity and authorization documentations have been eliminated. Forms I-688 (Temporary Resident Card), I-688A (Employment Authorization Card) and I-688B (Employment Authorization Card) have been eliminated from List A. These Forms are older employment authorization documents and are no longer issued.
  • Valid passports for certain individuals have been added to the List A evidence of identity and employment authorization. The final regulations add valid passports for citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI), as well as Form I-94 and Form I-94A nonimmigrant admission under the Compact of Free Association between the U.S. and the FSM or RMI to the List A documents to prove identity and employment authorization.
  • Foreign passports containing certain machine-readable immigrant visas have been added to the List A evidence of identity and employment authorization. A temporary I-551 printed notation on a machine-readable immigrant visa in addition to the foreign passport with a temporary I-551 stamp has been added to the List of Acceptable Documents on List A.

The current Form I-9, dated 06/05/07 will no longer be valid for use on or after April 3, 2009.  The revised I-9 form can be found at: http://www.uscis.gov/files/form/i-9.pdf.

Please contact our office for more information about compliance with the new Form I-9 requirements or for any other employment or employee benefits matter.

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