It’s Not Easy Having Plans: Revising Benefits Can Give Rise To Other Claims

As employers continue preparing for health plan changes that take place in 2015 under the ACA, I have been following a number of developments that remind me of the importance of thinking globally with respect to revisions to benefits. What I mean by that is just because you can do something does not necessarily mean you should do something because of the breadth of other laws that impact employers beyond ERISA and the ACA.

Earlier this week, a number of news outlets reported how some companies were adding "egg freezing" benefits to their health plan fertility coverage. The health plans cover the cost of female employees who want to cryogenically preserve eggs to be used to have children. In one quote I read, it suggested that this would allow women more opportunity to wait to have children until after their career has matured. But a concern with this type of benefit is that the company is sending a message that if you have children when you are younger, the company sees you as being not career oriented. Women who chose not to take advantage of the benefit might feel discriminated against if they are not promoted as quickly. So the risk for these companies is that women who decide to have children can make claims for discrimination.

Wellness plans have to be carefully considered as well. Recently, the EEOC announced that it had filed two suits against employers under the ADA by requiring employees to submit to medical examinations and inquiries that "were neither job-related nor consistent with business necessity." The EEOC contended that these programs were not voluntary and thus violated the ADA. Since the EEOC has not yet issued guidance on how employers may structure their wellness programs to avoid violations of the ADA, this...