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In This Edition by MikeJenny


									                                                                  April 5, 2011

                                     ADAA REGULATIONS ISSUED:
  In This Edition:                   DISCRIMINATION IS THE FOCUS

                             The ADA Amendments Act of 2008 (ADAA) was
                             enacted September 25, 2008. This law amended
   ADAA REGULATIONS         the Americans with Disabilities Act (ADA) which
                             became law on July 26, 1990 (see ADA Amended
ISSUED: DISCRIMINATION IS    from the October, 2008 Benefit Beat). On March
        THE FOCUS            25, 2011, final regulations implementing the
                             ADAA were issued. These regulations become
                             effective on May 24, 2011.

 FINANCIAL INCENTIVES FOR   Generally, to be protected by the ADAA, the
                               1. Has a physical or mental impairment that
PARTICIPATION: EMPLOYERS           substantially limits one or more major life
         BEWARE                    activities;
                               2. Has a record of a physical or mental
                                   impairment that substantially limits a major
                                   life activity; or
                               3. Is regarded as having an actual or perceived
                                   physical or mental impairment.

                             Over the years since the ADA was enacted, the
                             Courts have construed the law very narrowly. The
                             ADAA was enacted in an effort to bring the law
                             back to its original intent. Consistent with this
                             theme, the recently enacted regulations focus on
                             broadening the scope of the law’s protection. What
                             this means for employers is that their focus should
                             be less on whether someone is covered by the law,
                             and more on ensuring that it is not discriminating
                             against the individual.       Said another way,
                             employees will have limited obligations to prove
                             that they are protected by the law. The burden will
                             be on the employer to ensure that they have not
                             discriminated against protected individuals.
                                                                      page 1
continued from Page 1

The final regulations expand the definition of         Additional Information about ADAA Final
major life activity. The regulations clarify that                    Regulations:
to be protected by the ADAA, the disability           Questions and Answers on the Final
need only impact a discreet major life activity,            Rule Implementing the ADA
and not multiple life activities. Examples of                 Amendments Act of 2008
major life activities include: caring for oneself,     Questions and Answers for Small
performing manual tasks, seeing, hearing,                    Businesses: The Final Rule
eating, sleeping, walking, standing, sitting,          Implementing the ADA Amendments
reaching, lifting, bending, speaking, breathing,                      Act of 2008
learning, reading, concentrating, thinking,             Fact Sheet on the EEOC’s Final
communicating, interacting with others, and               Regulations Implementing the
working. According to the final regulations,                            ADAAA
major life activities also include the operation
of major bodily functions, including functions
of the immune system, special sense organs           Financial Incentives for Wellness
and skin, normal cell growth, digestive,             Program Participation: Employers
genitourinary, bowel, bladder, neurological,                      Beware
brain, respiratory, circulatory, cardiovascular,     The increased use of wellness programs raises
endocrine, hemic, lymphatic, musculoskeletal,
                                                     issues relating to the Americans with
and reproductive functions, as well as the           Disabilities Act (ADA) (see Health Risk
functionality of an individual organ within a        Assessments: Where Do They Stand? from
body system.                                         the June 2009 edition of the Benefit Beat).
                                                     The potential risk can arise in a couple ways,
The expanded scope of the ADAA has
                                                     such as inquiring about non-job related
significant  implications    for  employment         disability, or making coverage under a health
purposes.     It also has implications for           plan contingent upon completing a health risk
employee benefits, particularly as it relates to
                                                     assessment.     The EEOC has not provided
leave entitlement.      It may be that a             formal guidance on this matter; however,
reasonable accommodation under the ADAA is           have issued two informal opinions.
a leave of absence which may extend beyond
otherwise available family and medical leave.        In an opinion rendered in March, 2009, the
                                                     EEOC       contemplated     the   scenario   of
Separate from these regulations, a question          participation in the health plan being
remains outstanding about when employers             contingent upon completing a health risk
can request medical information. Generally,
                                                     assessment. According to the EEOC, this kind
pursuant to the ADA, medical information can         of arrangement violates the ADA. Making
only be requested from an employee if it is          eligibility for health coverage contingent upon
fully voluntary. This leaves open questions,
                                                     completing a health risk assessment is an
particularly as it relates to wellness programs      impermissible use of medical information, in
and health risk assessments (see Financial           contravention of the ADA.
Incentives for Wellness Program Participation:
Employers Beware, below).                            In August, 2009, the EEOC issued a second
                                                     informal opinion letter relating to the use of
                                                     a health risk assessment as a condition of
                                                     receiving a contribution to an employer-
                                                     sponsored       health         reimbursement

April 5, 2011                                                                     page 2
The required health risk assessment asked a         wellness program, was certified by the U.S.
series of over 100 questions, including family      District Court of the Southern District of
health history, self-care, personal health,         Florida as a valid class action case. According
women’s health, nutrition/health choices,           to the Complaint, the crux of the matter
physical activity, and alcohol and tobacco          questions whether Broward’s “voluntary”
usage, many of which were determined by             wellness program violates the ADA against
EEOC to be disability-related.        The EEOC      making      disability-related    inquiries  or
concluded that these questions were not job-        conducting medical examinations.
related, nor justifiable as a business necessity.
Disability-related    inquiries   and    medical    At this point, the issue is far from resolved. It
examinations are permitted as part of a             will be helpful to get some guidance on what
voluntary wellness program. A wellness              constitutes “voluntary”, specifically as it
program is considered ‘voluntary’ if employees      relates to wellness programs.
are neither required to participate nor
penalized for non-participation.

The EEOC contemplated whether the Health
Insurance Portability and Accountability Act of
1996 (HIPAA) nondiscrimination based on
health status rules could be used as a
roadmap for determining “voluntariness”.
These HIPAA rules prohibit group health plans
from discriminating against individuals based
on health-status related factors, such as
current or prior medical conditions, claims
experience, etc. HIPAA’s nondiscrimination
rules specifically address wellness programs.

“Voluntary” Wellness Program?
A recent class action lawsuit filed in Florida
bears monitoring. The case (Bradley Seff v.
Broward County, Case 0:10-cv-61437-KMM)                 The information contained in this Benefit Beat is not
                                                       intended to be legal, accounting, or other professional
centers around an employer offering financial
                                                         advice, nor are these comments directed to specific
incentives for participating in a group              situations. The information contained in this Benefit Beat
“voluntary” wellness program. The program             is provided as general guidance and may be affected by
requires employees to undergo an on-line            changes in law or regulation. This article is not intended to
                                                     replace or substitute for accounting or other professional
health risk assessment and complete a
                                                    advice. You must consult your own attorney or tax advisor
biometric screening (finger stick for glucose                    for assistance in specific situations.
and cholesterol). Employees who choose not            This information is provided as-is, with no warranties of
to participate in the health risk assessment             any kind. CBIZ shall not be liable for any damages
                                                       whatsoever in connection with its use and assumes no
and biometric screening are charged an
                                                     obligation to inform the reader of any changes in laws or
additional $20 bi-weekly by automatic payroll        other factors that could affect the information contained
deduction, on top of their health premium.                                      herein.
                                                      As required by U.S. Treasury rules, we inform you that,
                                                       unless expressly stated otherwise, any U.S. federal tax
In March, 2011, a class action, representing
                                                       advice contained in this Benefit Beat is not intended or
approximately 267 Broward County’s current          written to be used, and cannot be used, by any person for
and retired employees affected by the                    the purpose of avoiding any penalties that may be
additional charge for non-participation in the                imposed by the Internal Revenue Service.

April 5, 2011                                                                             page 3

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