Wednesday, May 20, 2009

Mid-week miscellany

  • Senator Joe Lieberman (I Ct), who chairs the Senate committee with FEHBP oversight responsibility, announced today that he, joined by "Ranking Member Susan Collins, R-Me., and Reps. Tammy Baldwin, D-Wisc., and Ileana Ros-Lehtinen, R-Fla., Wednesday introduced legislation to give the domestic partners of federal employees the same benefits - and require of them the same obligations - as the spouses of federal employees." Sen. Lieberman has introduced this bill in several past Congresses, but it appears to me that the bill can succeed in this Congress because it has an Administration which supports it.

  • Recently, the President urged OPM to ramp up healthier fed initiatives. Many large employers have been requiring employees to complete health risk assessments as a precondition to participating in its health plan. Last year, according to CCH, federal regulatory agencies recognized that this practice does not violate HIPAA's non-discrimination rules for group health plans. "These requirements do not violate HIPAA nondiscrimination provisions because enrollment is not conditioned on the employee's health status or on attaining specified health outcomes (such as lowering cholesterol to a certain level or reducing weight to a certain target)." However, I noticed today that the EEOC General Counsel's office has advised informally that this precondition violates the Americans with Disabilities Act:

    Title I of the Americans with Disabilities Act (ADA) limits when an employer
    may obtain medical information from applicants and employees. Before a job offer is made, the ADA prohibits all disability-related inquiries (i.e., questions
    likely to elicit information about a disability) and medical examinations, even
    if they are related to the job. After a conditional offer is made, an employer
    may ask disability-related questions and require medical examinations as long as it does so for all entering employees in the same job category. Once employment begins, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. See 42 U.S.C. § 12112(d); 29 C.F.R. §§ 1630.13, 1630.14; EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA, 8 Fair Empl. Prac. Man. (BNA) 405:7701 (“Enforcement Guidance”). (This document is available on our website at

    Although the Commission has not taken a formal position on the question you
    have asked, requiring that all employees take a health risk assessment that
    includes disability-related inquiries and medical examinations as a prerequisite
    for obtaining health insurance coverage does not appear to be job-related and
    consistent with business necessity, and therefore would violate the ADA. A
    disability-related inquiry or medical examination of an employee may be
    job-related and consistent with business necessity when an employer “has a
    reasonable belief, based on objective evidence, that: (1) an employee's ability
    to perform essential job functions will be impaired by a medical condition; or
    (2) an employee will pose a direct threat due to a medical condition.” Id.
    Q&A 5, at 405:7708. The Enforcement Guidance further notes that an employer may seek disability-related information or require a medical examination that follows up on a “request for reasonable accommodation when the disability or need for accommodation is not known or obvious,” id. Q&A 7 & 10, at 405:7711, 7713; or where the examination or other monitoring is conducted under specific circumstances not applicable here (e.g., where periodic medical examinations are required of employees in positions affecting public safety). Id. Q&A 14-20, 405:7715-18.
  • On the health care reform front, Modern Healthcare reports that the Senate Finance Committee members had a productive eight hour session discussing how to finance universal coverage, but no decisions were reached. Meanwhile, Senate and House Republicans introduced a healthcare reform bill called the Patients' Choice Act of 2009.

No comments: