EEOC Issues Proposed Wellness Incentives Rule

Programs must be voluntary and nondiscriminatory

FACT SHEET FOR SMALL BUSINESS:

By Dana Wilkie  4/16/2015

The proposal, which the EEOC announced April 16, 2015, would amend regulations implementing the equal employment provisions of the Americans with Disabilities Act (ADA) to address the interaction between Title I of the ADA and financial incentives as part of wellness programs offered through employer group health plans.The U.S. Equal Employment Opportunity Commission (EEOC) has issued a proposed rule to help clear up confusion over using financial incentives in worksite wellness programs.

The proposal was published April 20, 2015, in the Federal Register with a 60-day public notice and comment period, through June 19, 2015.

The proposal provides what an EEOC press release described as “much needed guidance” to employers and employees about “how wellness programs offered as part of an employer’s group health plan can comply with the ADA consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Affordable Care Act (ACA).”

Many companies that provide health insurance offer wellness programs that encourage healthier lifestyles. To participate in these wellness programs, employees may be required to undergo health risk assessments that measure body weight and cholesterol, blood glucose, and blood pressure levels. Some programs offer employees financial and other incentives to encourage them to participate.

The ADA limits the circumstances in which employers may ask employees about their health or require them to undergo medical examinations. It allows such inquiries and exams if they are voluntary and part of an employee health program. Workers, however, can’t be required to participate in such programs, and they can’t be denied health coverage or disciplined if they refuse to participate.

The EEOC and the Republican-led Congress have been at loggerheads over the acceptability of “aggressive” financial incentives in wellness programs. On March 24, the House Education and the Workforce Committee held a hearing on a proposed bill that would limit EEOC enforcement activity toward these initiatives—H.R. 1189, the Preserving Employee Wellness Programs Act.

In recent months, the EEOC has filed three lawsuits alleging that employees lost out on financial incentives because they declined to participate in their employers’ wellness programs, and that this violated the ADA because the incentives rendered the programs involuntary. The proposed legislation is intended to protect wellness programs that offer incentives that fall within the maximums established by the ACA: up to 30 percent of the cost of annual health coverage; and for tobacco cessation programs, up to 50 percent of the cost of health coverage.

In addition, the ACA and its implementing regulations require that wellness programs provide a reasonable alternative or waiver for achieving the incentive if an individual can’t participate or achieve program goals due to a health condition or disability.

The EEOC’s proposed rule makes clear that wellness programs are permitted under the ADA, but that they may not be used to discriminate based on disability.

“Employers … may not subject employees to interference with their ADA rights, threats, intimidation, or coercion for refusing to participate in a wellness program or for failing to achieve certain health outcomes,” the press release states. “Individuals with disabilities must be provided with reasonable accommodations that allow them to participate in wellness programs and to earn whatever incentive an employer offers.”

The EEOC is also publishing a Fact Sheet for Small Businesses and a Question and Answer document for the public.

Proposed Rule Could Trim Tobacco-Cessation IncentivesAmong the key differences between the Equal Employment Opportunity Commission (EEOC) proposed rule on workplace wellness programs, published in the Federal Register on April 20, and previous federal agency guidance on the Affordable Care Act is that the EEOC proposal limits the size of financial incentives related to tobacco-cessation programs, according to an analysis by Epstein Becker Green P.C.ACA regulations issued in 2013 had increased the maximum total health-contingent wellness program incentive from 20 percent to 30 percent of the total cost of coverage under the group health plan and to 50 percent if used for tobacco cessation, echoing the statutory language of the ACA. But the EEOC’s proposed rule excludes the additional 20 percent incentive available for wellness programs related to tobacco cessation.

“By excluding the additional 20 percent incentive allowed under the ACA, employees lose the opportunity to lower their premiums by that additional amount. Even more troubling is that, depending on the employee, a refusal to permit the full tobacco cessation incentive might tip an employee over the ACA’s 9.5 percent threshold for ‘affordability,’ possibly resulting in assessable payments under the shared employer responsibility provisions,” according to the analysis.

Taking a somewhat different view, an alert from attorneys at Seyfarth Shaw LLP notes, “This proposed rule would further undercut the HIPAA rules which would permit a 50 percent incentive for smoking cessation programs even if a disability-related question or medical exam is required. (Presumably, the 50 percent incentive would still be permissible if no disability-related inquiry or medical exam is required, although the EEOC requests comments on this point.)”

According to attorneys at Epstein Becker Green P.C., “It is also of great significance that the EEOC takes the position that the measure of affordability and the impact of a 30 percent reward or penalty are based on self-only coverage. “It makes no sense that, where there is family or tiered coverage and the potential reward is available to all those covered, the 30 percent reward limitation should be based on self-only coverage.”

The attorneys also noted, “The proposed rule does not address whether the EEOC’s interpretation of the term “voluntary” and its interplay with wellness program incentives under the ADA cross over to similar provisions under GINA [the Genetic Information Nondiscrimination Act]. The EEOC says further rulemaking on GINA and wellness programs will be forthcoming.”

What Must Be Disclosed in the Wellness Program Notice?As highlighted by attorneys at Seyfarth Shaw LLP, under the proposed EEOC rule the wellness program sponsor must provide a notice to participants that clearly explains: What medical information will be obtained.

How the medical information will be used.

Restrictions on its disclosures.

How the program will prevent improper disclosure of the information (including whether the program complies with HIPAA Privacy requirements).

 

EEI and OSHA Reach Settlement on Final Rules Affecting Electric Utilities

EEI And OSHA Reach Settlement On Final Rules Affecting Electric Utilities

After months of gathering information and forming the necessary arguments,Edison Electric Institute (EEI) has reached a settlement agreement with OSHA resolving EEI’s challenge to the final rules for electric power generation, transmission and distribution.

EEI worked with OSHA, the IBEW and member companies to develop compliance guidance addressing the most significant matters in the revised standards, which were issued by OSHA in April 2014.

The process has resulted in compliance guidance on 45 key issues.  Among the issues addressed are minimum approach distances; electric arc protection/FR clothing; host employer/contractor communications; underground operations; and fall protection.

The settlement agreements officially go into effect February 17, and OSHA plans to post applicable documents on its website.  In addition, EEI plans to publish a “Compliance Dashboard” to help members easily reference the relevant compliance guidance and deadlines for key issues.

Source: EEI

Settlement Agreement

Exhibit A

Exhibit B

Exhibit C

Exhibit D

U.S. Department of Transportation Eliminates $1.7 Billion Annual Paperwork Burden for U.S. Trucking Industry.

December 9, 2014
Final Rule Marks Obama Administration’s Largest Paperwork Reduction

WASHINGTON – U.S. Transportation Secretary Anthony Foxx announced today that, effective Dec. 18, 2014, professional truck drivers will no longer have to comply with a burdensome daily paperwork requirement, saving the trucking industry an estimated $1.7 billion annually without compromising safety.

“We delivered big on President Obama’s call to cut red tape and waste,” said Secretary Foxx. “America’s truckers should be able to focus more on getting their goods safely to store shelves, constructions sites or wherever they need to be instead of spending countless hours on unnecessary paperwork that costs the industry nearly $2 billion each year. This is a far better way to do business.”

Commercial truck drivers are required to conduct pre- and post-trip inspections of their vehicles to identify any safety defects or maintenance concerns. The final rule announced today removes the requirement that drivers file a report for approximately 95 percent of inspections when equipment problems or safety concerns are not identified.

“Ensuring regulatory flexibility for businesses and reducing unnecessary regulatory burdens through the retrospective review process are top priorities for President Obama and the Office of Management and Budget,” said OMB Director Shaun Donovan. “I commend Secretary Foxx and the Department of Transportation for their work on this effort, which is one of the largest paperwork reduction rules in the last decade. We look forward to working with the Department of Transportation and other agencies on ways to further institutionalize retrospective review as an essential component of government regulatory policy.”

The Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) estimates that professional truck drivers spend approximately 46.7 million hours each year completing Driver Vehicle Inspection Reports (DVIRs). Eliminating DVIRs when no safety defects or mechanical deficiencies are identified will result in time savings valued at $1.7 billion dollars annually.

“We are committed to improving efficiency so that drivers can stay focused on their safety and the safety of everyone they share the road with,” said FMCSA Acting Administrator Scott Darling. “Until now, truck driver vehicle inspection reports were the 19th highest paperwork burden across all federal agencies. By scrapping the no-defect inspection reports, the burden is reduced to 79th, marking the most significant paperwork reduction achievement thus far in the Obama Administration.”

FMCSA’s No-Defect DVIR rule will be effective on the date it is published in the Federal Register, which is scheduled for Dec. 18, 2014.

http://www.gpo.gov/fdsys/pkg/FR-2014-12-18/pdf/2014-29331.pdf

President Obama launched the Administration’s Regulatory Review and Reform initiative in January 2011 by issuing Executive Order 13563. The order commenced an unprecedented government-wide review of regulations with the goal of eliminating or modifying out-of-date, ineffective or overly-burdensome rules and reducing regulatory burdens on the private sector. The retrospective review effort to date includes actions that will save more than $20 billion dollars over the next few years, with more savings in the future.

In June 2012, FMCSA eliminated a comparable requirement for truck drivers operating intermodal equipment trailers used for transporting containerized cargo shipments. The cost savings to the intermodal industry was estimated to be $54 million annually.

Updated: Wednesday, December 10, 2014

http://www.fmcsa.dot.gov/newsroom/us-department-transportation-eliminates-17-billion-annual-paperwork-burden-us-trucking

 

Update to OSHA’s Recordkeeping Rule

ANNOUNCEMENT

On September 11, 2014, OSHA announced changes to the list of industries that are exempt from the requirement to routinely keep OSHA injury and illness records, and to the list of severe work-related injuries and illnesses that all covered employers must report to OSHA. These new requirements will go into effect on January 1, 2015 for workplaces under Federal OSHA jurisdiction. The guidance materials found on this page have been updated to reflect the new requirements.

For complete information on these changes, please visit:
Updates to OSHA’s Recordkeeping Rule

Changes Prompt Questions – 1910.269 and 1926, Subpart V

Electric Power Generation, Transmission, and Distribution
Maintenance and Construction
(29 CFR 1910.269 and 29 CFR Part 1926, Subpart V)

Frequently Asked Questions (FAQs)

Note: OSHA issued a final rule to improve workplace safety and health for workers performing electric power generation, transmission and distribution work. The FAQs are divided into five sections:

  1. General Questions.
  2. Information-Transfer (Host-Contractor) Questions.
  3. Fall Protection Questions.
  4. Minimum Approach-Distance Questions.
  5. Arc-Flash Protection Questions.

The rule is available at http://www.dol.gov/find/20140401/2013-29579.pdf*

 

Quad State Members Nearing Retirement

The Quad State Instructors group has traditionally honored members with a plaque at their retirement.  Please let the Bev know if you are attending your last Quad States conference before retirement.  This provides the opportunity to have your plaque in hand for the business meeting.  If you aren’t able to attend, or know of a Quad State member who has recently retired, let us know.  A plaque can be sent via US mail.

Al's Retirement PlaqueYou may also leave a message via the website and it will be forwarded to the appropriate person.

 

Altec Industries Changes Standard Decelerating Lanyard Length

Fall Protection Information

In August 2011 OSHA issued an Memorandum regarding fall protection on aerial lifts during construction activities. It applied an OSHA requirement not previously used for aerial lifts.

“While working on aerial lifts at heights six feet or more above a lower level… Personal fall arrest systems, when stopping a fall, shall: (iii) be rigged such that an employee can neither free fall more than 6 feet (1.8 m), nor contact any lower level. [§1926.502(d)(16)(iii)]”

8-22-2011 Fall Protection on Aerial Lifts Interpretation Letter

After this Memorandum was issued, many questioned OSHA regarding its past policy of encouraging the use Fall Arrest equipment (including 6 foot decelerating lanyards) on aerial lifts. OSHA’s position was that regardless of past enforcement, the requirements of 1926.502(d)(16)(iii) can be applied to aerial lifts. In order to assist customers in meeting this requirement, Altec requested an Interpretation from OSHA regarding the application of test procedures found in Appendix C of the Fall Protection Standard.

9-12-2012 OSHA Fall Protection on aerials Interpretation Letter

Utilizing the approved Appendix C test methods, Altec has determined that a 6 foot decelerating lanyard may not meet the requirements of 1926.502(d)(16)(iii) on some models or aerial devices when the platform floor height is 6 feet above the lower level. To meet the above described requirements for all models, Altec has transitioned to a 4.5 foot decelerating lanyard as our standard lanyard offering. This is not the only method of achieving compliance. However, Altec believes this is an appropriate approach that minimizes disruptions to current fall protection practices in the industry.

OSHA Final Rule: Cranes and Derricks

 

OSHA issues final rule to broaden exemption for digger derricks in its Cranes and Derricks standard

WASHINGTON – The Occupational Safety and Health Administration has issued a final rule that broadens the current exemption for digger derricks used in the electric-utility industry. The exemption has been expanded to include telecommunications work in addition to electric-utility work. This final rule provides a complete exemption from having to follow the requirements of Subpart CC of the Cranes and Derricks in Construction standard. The digger derricks exemption is part of the Cranes and Derricks final standard that was issued Aug. 9, 2010.

Digger derricks are pieces of equipment used to drill holes for utility poles. These digger derricks are commonly used by companies to place poles inside holes and attach transformers and other items to the poles.

OSHA published a direct final rule and a companion notice of proposed rulemaking on Nov. 9, 2012, and received a significant adverse comment on the direct final rule during the comment period. The agency then withdrew the direct final rule on Feb. 7, 2013. After considering the comment, OSHA is issuing this final rule based on the notice of proposed rulemaking.

The rule becomes effective June 28, 2013.

OSHA Revises Hazard Communication Standard

Trade News Release Banner Image

Release Number: 12-280-NAT
March 20, 2012
Contact: Diana Petterson      Jesse Lawder
Phone: 202-693-4681      202-693-4659
Email: petterson.diana@dol.gov      lawder.jesse@dol.gov

US Department of Labor’s OSHA revises Hazard Communication Standard
Regulation protects workers from dangerous chemicals,
helps American businesses compete worldwide

WASHINGTON – To better protect workers from hazardous chemicals, the U.S. Department of Labor’s Occupational Safety and Health Administration has revised its Hazard Communication Standard, aligning it with the United Nations’ global chemical labeling system. The new standard, once implemented, will prevent an estimated 43 deaths and result in an estimated $475.2 million in enhanced productivity for U.S. businesses each year.

“Exposure to hazardous chemicals is one of the most serious dangers facing American workers today,” said Secretary of Labor Hilda L. Solis. “Revising OSHA’s Hazard Communication Standard will improve the quality, consistency and clarity of hazard information that workers receive, making it safer for workers to do their jobs and easier for employers to stay competitive in the global marketplace.”

The Hazard Communication Standard, being revised to align with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals, will be fully implemented in 2016 and benefit workers by reducing confusion about chemical hazards in the workplace, facilitating safety training and improving understanding of hazards, especially for low literacy workers. OSHA’s standard will classify chemicals according to their health and physical hazards, and establish consistent labels and safety data sheets for all chemicals made in the United States and imported from abroad.

The revised standard also is expected to prevent an estimated 585 injuries and illnesses annually. It will reduce trade barriers and result in estimated annualized benefits in productivity improvements for American businesses that regularly handle, store and use hazardous chemicals, as well as cost savings of $32.2 million for American businesses that periodically update safety data sheets and labels for chemicals covered under the standard.

“OSHA’s 1983 Hazard Communication Standard gave workers the right to know. As one participant expressed during our rulemaking process, this update will give them the right to understand, as well,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels.

During the transition period to the effective completion dates noted in the standard, chemical manufacturers, importers, distributors and employers may comply with either 29 Code of Federal Regulations 1910.1200 (the final standard), the current standard or both.

The final rule revising the standard is available at http://s.dol.gov/P1*.

Further information for workers, employers and downstream users of hazardous chemicals can be reviewed at OSHA’s Hazard Communication Safety and Health topics at http://www.osha.gov/dsg/hazcom/index.html, which includes links to OSHA’s revised Hazard Communication Standard and guidance materials such as Q and A’s, OSHA fact sheet and Quick Cards.