White Paper

Wellness Programs - Recent EEOC Litigation, Other Laws That May Apply and Taxation of Incentives

 
“Prior to the issuance of proposed regulations on wellness programs, the EEOC took the position that a wellness program is not "voluntary" if the employer imposes a penalty on employees who do not participate. In Seff v. Broward County, the 11th Circuit Court of Appeals upheld a District Court opinion that a wellness program did not violate the Americans with Disabilities Act (the “ADA”), even though it penalized employees who did not participate by withholding $20 from their bi-weekly paycheck. The Court did not find that the program was voluntary, but rather that it was subject to a “safe harbor” in the ADA for administering the terms of a bona fide benefit plan that are based on “underwriting risks, classifying risks, or administering such risks.”

When the EEOC issued its proposed ADA Wellness rule, it indicated in a footnote that it did not think the ADA safe harbour applied to health insurance, suggesting that it would not follow the Seff rule outside of the 11th Circuit. Wishful thinking, it turns out.”

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Tim Goodman is a Partner with the law firm of Dorsey & Whitney LLP. He advises employers on all aspects of employee benefits; and advises employers on DOL, IRS and EEOC guidance on wellness plans, Affordable Care Act questions, and other health and welfare matters.

Mark J. Kinney founded The Kinney Firm in 2010, now Kinney & Larson LLP; former partner with Dorsey & Whitney LLP and Lindquist & Vennum PLLP. He has 23 years’ experience advising employers and health care industry vendors on health and welfare benefits. Mr. Kinney’s knowledge base includes ACA, ERISA, HIPAA, COBRA, GINA, ADA and Internal Revenue Code provisions related to health and welfare benefits.

Faculty

Mark J. Kinney

Mark J. Kinney

Kinney & Larson LLP

Agenda

Faculty

Mark J. Kinney

Mark J. Kinney

Kinney & Larson LLP

  • Employee benefits attorney with 25 years of experience designing products and services for the health care industry
  • Worked with a large national bank to bring the first HSAs to market and represents some of the largest SHA custodians in the country
  • Drafted and negotiated nearly every contract commonly used by HSA custodians, third party administrators, investment advisors, and online platform providers
  • Interpreted and applied the large and growing body of regulatory guidance on HSAs to a wide range of issues, but with a focus on product development in the HSA industry
  • Advises venture-funded health care startups, third party administrators of self-funded group health plans, and vendors of wellness programs, cafeteria plans, and COBRA services
  • Represents a health care consortium of over 400 cities, counties and school districts
  • J.D. degree, William Mitchell College of Law; M.B.A. degree, Claremont Graduate School; Double major in economics and english, St. John’s University
  • Can be contacted at [email protected]

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