Conn Maciel Carey Opens Chicago Office with Prominent OSHA and Labor Lawyers Aaron Gelb and Mark Trapp

Washington, D.C.-based OSHA and Labor & Employment law firm Conn Maciel Carey LLP is pleased to announce the launch of a Midwest Office in Chicago, IL and the addition of two prominent Chicago attorneys – Aaron R. Gelb and Mark M. Trapp.

“We are thrilled not only to expand the Firm’s national footprint to the Midwest, but especially to be doing so with such great lawyers as Aaron and Mark,” said Bryan Carey, the firm’s managing partner.  “This move will enable us to better serve our existing national platform of clients, and will strengthen the firm’s specialty focus on Labor & Employment and Workplace Safety Law.  We look forward to bringing Aaron and Mark on board, as they will add depth to all areas of the firm’s practice, including OSHA, litigation and labor counseling on behalf of our management clients.”

Mr. Gelb, former Labor & Employment Shareholder and head of the OSHA Practice at Vedder Price PC, in its Chicago office, represents employers in all aspects of the employer-employee relationship.  Aaron GelbAaron’s practice has a particular emphasis on advising and representing clients in relation to inspections, investigations, and enforcement actions involving federal OSHA and state OSH programs, and managing the full range of litigation against OSHA.

“Aaron and I share the same vision of how we want to practice law and do business, thus entrusting him with the keys to our new Chicago office, and combining our expertise, talent, and resources together made so much sense,” said Eric J. Conn, Chair of the firm’s national OSHA practice“We look forward to partnering with Aaron to build a solid brand for our Midwest practice among our client base and doing what we know best, providing top-notch service and excellent value to clients.”

Aaron also has extensive experience litigating equal employment opportunity matters in federal and state courts having tried a number of cases to verdict and defending employers before the EEOC as well as fair employment agencies across the country.  In the past 5 years alone, Aaron has successfully handled more than 250 discrimination charges.

Mr. Gelb said “I am incredibly excited to join what I believe to be the country’s leading OSHA practice as the experience and expertise of the Conn Maciel team will enable me to enhance the workplace safety legal support I currently provide to my clients in the Midwest and beyond.  I’ve known Eric for years and have great respect for what he and his colleagues have accomplished in the OSH field.  At the same time, Kara’s employment defense group fits perfectly with my practice as we share a common client-focused philosophy and deep experience in many of the same industries.  While leaving Vedder Price after nearly 20 years was not an easy decision, I simply could not pass up the opportunity to partner with two dynamic attorneys that so perfectly complement the dual aspects of my practice.”

Mr. Trapp joins the firm with seventeen years of experience, during which he has represented employers in all types of labor disputes, from union campaigns and collective bargaining to grievances and arbitrations. Mark M. Trapp (3)Mr. Trapp has defended employers before administrative agencies and in litigation brought under the ADA, ADEA, Title VII and other federal anti-discrimination laws.

Mr. Trapp said “I am thrilled to again have the opportunity to work with the top-notch legal professionals at Conn Maciel Carey.” According to Mr. Trapp, the expertise of a boutique firm focused on OSHA and other labor and employment matters “complements my experience handling labor and employment issues. I look forward to helping strengthen the team’s ability to provide exceptional knowledge and insights to labor and employment clients, and expanding the firm’s presence in the Midwest.”

Mr. Trapp is perhaps best known as a leading authority on multi-employer pension withdrawal liability.  His articles on withdrawal liability and other labor and employment issues have been published in respected legal publications.

“I have worked with Mark for over a decade at various law firms, so I am excited that he has joined our boutique practice that focuses on positive client solutions and effective client service.  His unique knowledge of traditional labor issues and multi-employer pension disputes is unparalleled and he has proven to be a creative and out-of-the-box adviser when counseling clients,” Kara M. Maciel, Chair of the Labor & Employment Practice reported.

EEOC Issues Final Rules Addressing the Implications of ADA/GINA on Wellness Programs

WellnessToday, the Equal Employment Opportunity Commission (“EEOC”) released its final rules to amend regulations implementing Title I of the Americans with Disabilities Act (“ADA”) and Title II of the Genetic Information Non-Discrimination Act (“GINA”) as they relate to workplace wellness programs.  The EEOC had originally issued two Notices of Proposed Rulemaking in 2015 to revise current regulations as a result of the confusion surrounding how both the ADA and GINA impact wellness programs under the Affordable Care Act (“ACA”) and its regulations.  The final rules released today largely mirror the proposed regulations, with some important changes.  They will apply only prospectively starting the first day of the first plan year that begins on or after January 1, 2017 for the applicable health plan.

Below are the major provisions from each rule, as well as a discussion of the current legal landscape for employer wellness programs based on recent lawsuits brought by the EEOC.  Although the guidance from the EEOC is long overdue, the requirements these final rules impose do not completely align with the ACA, its regulations, or the intent to promote the use of wellness programs under the ACA.

Highlights of the Final Rule Revising ADA Regulations

As we discussed in a prior post, a major focus of the EEOC’s final rule is to address when a wellness program will be viewed as voluntary under the ADA.  As employers may already be aware, the ADA generally prohibits Continue reading

EEOC Expands Permissible Wellness Program Incentives Under GINA

On October 30, 2015, the Equal Employment Opportunity Commission (“EEOC”) issued a Notice of Proposed Rulemaking to amend regulations implementing Title II of the Genetic Information Non-Discrimination Act (“GINA”) as they relate to wellness programs offered through a group health plan.  With this new rule, the EEOC intends to broaden the use of incentives to encourage voluntary participation in employer-sponsored wellness programs under group health plans.  Specifically, the EEOC clarifies that an employer can offer a limited incentive to an employee’s spouse if the spouse (1) is covered by the employee’s health plan; (2) receives EEOC NPRM for GINAhealth or genetic services offered by the employer, including as part of a wellness program; and (3) provides information about his or her current health status.  Such information is often provided through a health risk assessment.

GINA prohibits an employer from using an employee’s or applicant’s genetic information in making employment decisions.  Thus, an employer is prohibited from requesting genetic information from an employee unless the employee voluntarily accepts health or genetic services, including those offered as part of a wellness program.  Even under this exception, however, current regulations restrict wellness programs from requiring employees to provide genetic information in order to receive an incentive.  The proposed rule makes clear that this restriction does not apply to an employee’s spouse because there is a minimal chance that an employer could obtain information about an employee’s genetic make-up from the current or past health status of an employee’s spouse.  For this reason, the proposed rule is limited to incentives for information about an employee’s spouse and does not include an incentive for current or past health status of an employee’s child as the EEOC believes that information could provide insight into the genetic make-up or predisposition of an employee.

Similar to other laws regulating incentives connected to wellness program participation, incentives permitted under GINA would not be allowed to exceed 30% of the total cost of coverage for the health plan.  Therefore, the total incentive for an employee and spouse to participate in the wellness program, together, may not exceed 30%.  For instance, the EEOC explains that if the total cost of coverage is $14,000.00, the incentive offered for providing information on current or past health status could be no more than $4,200.00 total for both an employee and his or her spouse.  Furthermore, the portion of the incentive attributable to the employee, alone, cannot be more than 30% of the cost of self-only coverage.  The proposed rule allows for a reward or penalty and the incentive can be financial or “in-kind” (i.e., time-off awards, prizes, or other items of value not to exceed 30% of the cost of coverage).  To participate, the spouse would have to provide knowing, written, and voluntary authorization for the employer to collect genetic information, just like an employee.

This proposed rule appears to be part of the EEOC’s continued effort over the last year to clarify the impact of federal statutes regulating health-related discrimination on wellness programs permitted and promoted under the Affordable Care Act.  For instance, as we discussed in a prior post, the EEOC put out a proposed rule to address the Americans with Disabilities Act’s (“ADA”) impact on employer wellness programs last April.  That rule clarifies when participation would be considered voluntary under the ADA and addresses incentives associated with participation.  Both of these proposed rules come amidst a recent upswing in litigation over wellness programs, with the EEOC pursuing claims against employers for violating non-discrimination laws for which it had yet to even provide clear guidance.

At this point, this is only a proposed rule and could potentially change based on comments received by the EEOC.  Employers currently have the opportunity to submit comments on the proposed rule until December 29, 2015.  Although the proposed rule is not yet controlling and could be altered, employers should continue to take proactive steps to ensure a compliant wellness program based on current regulations and the requirements likely to come down the pipeline.  The ability to offer incentives for spouse’s to provide current and past health status information could benefit employers as they are continuing to look for ways to cut health care costs, as long as those incentives are compliant and the program is implemented in a manner that meets GINA’s requirements.

Assessing the Health of Wellness Programs under EEOC Proposed Rule

WellnessOn the heels of its recent litigation against several companies for allegedly non-compliant wellness programs, the Equal Employment Opportunity Commission (“EEOC”) has finally promulgated a proposed rule to address a long-standing unknown for employers – how does one implement a wellness program that complies with the Americans with Disabilities Act (“ADA”)? The answer provided in its proposed rule as revealed on April 16, 2015, is still somewhat unclear and may change before the regulations become controlling law. But the rule does provide some guidance as to, at least, the EEOC’s interpretation of a voluntary, compliant wellness program. This is significant because the EEOC has been very active recently in prosecuting those employers it believes have instituted non-compliant programs.

In August and September of 2014, the EEOC filed two federal lawsuits against employers charging that the manner in which they implemented their wellness programs effectively compelled employee involvement because of the consequences for non-participation. Even more recently, the EEOC attempted to obtain an injunction to stop another employer from operating a wellness program that would penalize employees who did not participate in biometric testing, but the court refused to grant such a restraint. Now the EEOC looks to impact employer wellness programs through regulations. Principally, the proposed rule explains (1) when it will be applicable and why the ADA applies to wellness programs; and (2) when a wellness program will be considered voluntary and, thus, compliant.

Applicability of this Rule and the ADA to Wellness Programs

First, the EEOC establishes that wellness programs are covered by the ADA because they are included under the umbrella of employee health programs. Though the ADA usually prohibits employers from making disability-related inquiries or requesting medical examinations, there is an exception that allows voluntary medical examinations and inquiries as part of an employee health program.  Thus, such is permitted within a wellness program if participation is voluntary.

This interpretation from the EEOC dismisses court precedent set by the case Seff v. BrowardCounty, in which the Southern District of Florida determined that Continue reading