ACA and Wellness Programs: At Odds With EEO Laws and Collective Bargaining Agreements?

Transcription

1 ACA and Wellness Programs: At Odds With EEO Laws and Collective Bargaining Agreements?

2 Disclaimer This information and any presentation accompanying it (the Content ) has been prepared by Schulte Roth & Zabel LLP ( SRZ ) for general informational purposes only. It is not intended as and should not be regarded or relied upon as legal advice or opinion, or as a substitute for the advice of counsel. You should not rely on, take any action or fail to take any action based upon the Content. As between SRZ and you, SRZ at all times owns and retains all right, title and interest in and to the Content. You may only use and copy the Content, or portions of the Content, for your personal, non-commercial use, provided that you place all copyright and any other notices applicable to such Content in a form and place that you believe complies with the requirements of the United States Copyright and all other applicable law. Except as granted in the foregoing limited license with respect to the Content, you may not otherwise use, make available or disclose the Content, or portions of the Content, or mention SRZ in connection with the Content, or portions of the Content, in any review, report, public announcement, transmission, presentation, distribution, republication or other similar communication, whether in whole or in part, without the express prior written consent of SRZ in each instance. This information or your use or reliance upon the Content does not establish a lawyer-client relationship between you and SRZ. If you would like more information or specific advice of matters of interest to you please contact us directly Schulte Roth & Zabel LLP. All Rights Reserved. ACA and Wellness Programs: At Odds With EEO Laws and Collective Bargaining Agreements? 2014 Schulte Roth & Zabel LLP. All Rights Reserved.

3 Final Regulations on Employer Wellness Programs Before the Affordable Care Act, HIPAA allowed for incentives in exchange for participation in certain health promotion and disease prevention programs The HIPAA wellness rules were amended by the Affordable Care Act. Final regulations on Incentives for Nondiscriminatory Wellness Programs in Group Health Plans went into effect on August 2, 2013 The final regulations generally implement standards for group health plans and health insurance issuers offering group health insurance coverage with respect to the wellness program exception from the HIPAA nondiscrimination provisions ACA and Wellness Programs: At Odds With EEO Laws and Collective Bargaining Agreements? 2014 Schulte Roth & Zabel LLP. All Rights Reserved.

4 TRENDS More than 60% of employers have implemented wellness initiatives Larger employers (with 200+ employees) have greater offerings (e.g., 70% of large employers offer smoking cessation resources). Typically less than 20% of eligible employees participate in wellness interventions like smoking cessation programs Wellness initiatives with the highest participation rates are: Flu shot programs - Health risk assessments Health screenings - Health fairs ACA and Wellness Programs: At Odds With EEO Laws and Collective Bargaining Agreements? 2014 Schulte Roth & Zabel LLP. All Rights Reserved.

5 Reward Defined The ACA regulations define a reward as either a discount or financial benefit, or the avoidance of a penalty like the absence of a surcharge. Common incentives that are tied to health risk assessments, health screening and fitness programs include: Noncash incentives such as prizes and raffles Gift cards and gift certificates Fitness center discounts Reductions in insurance premiums, deductibles or co-pays surcharges (i.e. smoking surcharge) Cash rewards (taxable) ACA and Wellness Programs: At Odds With EEO Laws and Collective Bargaining Agreements? 2014 Schulte Roth & Zabel LLP. All Rights Reserved.

6 Penn State s Take Care Of Your Health Initiative The Penn State program that came under fire last year imposed a $1,200 annual penalty which could be avoided if the employee: underwent a preventative physical; underwent a biometric screening including cholesterol, glucose check measurements of height, weight and waist circumference; completed a 12 page health wellness questionnaire with questions about highly personal and sensitive information such as: Whether the employee performs breast and testicular self-examinations Marital problems Financial matters Pregnancy plans Degree of workplace stress Feelings of sadness or guilt Problems with friends, family or supervisors ACA and Wellness Programs: At Odds With EEO Laws and Collective Bargaining Agreements? 2014 Schulte Roth & Zabel LLP. All Rights Reserved.

7 Examples of Participatory Wellness Programs Reimbursing employees for either all or part of the cost of membership in a fitness center Providing a reward to employees for participating in a diagnostic testing program, regardless of the results of the test Providing a reward to employees for attending a free monthly health seminar ACA and Wellness Programs: At Odds With EEO Laws and Collective Bargaining Agreements? 2014 Schulte Roth & Zabel LLP. All Rights Reserved.

8 Examples of Activity-Only Wellness Programs Walking programs Diet programs Exercise programs ACA and Wellness Programs: At Odds With EEO Laws and Collective Bargaining Agreements? 2014 Schulte Roth & Zabel LLP. All Rights Reserved.

9 Examples of Outcome-Based Wellness Programs Imposing a premium or surcharge based on tobacco use Attaining a certain result in a biometric screening or health assessment ACA and Wellness Programs: At Odds With EEO Laws and Collective Bargaining Agreements? 2014 Schulte Roth & Zabel LLP. All Rights Reserved.

10 Requirements for Participatory Wellness Programs HIPAA nondiscrimination rules require that participatory wellness programs be made available to all similarly situated individuals, regardless of health status If factors other than health status (such as scheduling limitations) limit the participant s ability to take part in the program, the program does not discriminate based on a health factor ACA and Wellness Programs: At Odds With EEO Laws and Collective Bargaining Agreements? 2014 Schulte Roth & Zabel LLP. All Rights Reserved.

11 Requirements for Health Contingent Wellness Programs Frequency of Opportunity to Qualify Eligible individuals must be given the opportunity to qualify for the reward at least once per year Size of Reward The total reward offered to an individual under all health-contingent wellness programs cannot exceed 30% of the total cost of employee-only coverage under the plan, including both employer and employee contributions (or 50 percent for health-contingent wellness programs designed to prevent or reduce the use of tobacco) Reasonable Design Health-contingent wellness programs must be reasonably designed to promote health or prevent disease. Under the regulations a program is considered reasonably designed if it has a reasonable chance of improving the health of, or preventing disease in, participating individuals, and it is not overly burdensome, is not a subterfuge for discriminating based on a health factor, and is not highly suspect in the method chosen to promote health or prevent disease ACA and Wellness Programs: At Odds With EEO Laws and Collective Bargaining Agreements? 2014 Schulte Roth & Zabel LLP. All Rights Reserved.

12 Requirements for Health Contingent Wellness Programs (Continued) Uniform Availability and Reasonable Alternative Standards The full reward amount be available to all similarly situated individuals. The full amount must also be made available to those who qualify by satisfying a reasonable alternative standard Notice of Availability of Reasonable Alternative Standard Plans must disclose the availability of a reasonable alternative standard and, if applicable, the possibility of waiver of the otherwise applicable standard in all plan materials describing the terms of a health-contingent wellness program ACA and Wellness Programs: At Odds With EEO Laws and Collective Bargaining Agreements? 2014 Schulte Roth & Zabel LLP. All Rights Reserved.

13 Example of limited amount of reward Employee pays premium of $600 Employer pays premium of $400 Employer proposes a premium rebate of $500 if the employees' BMI is below 27 The size of the reward must be limited to $300 (30% of $1000 cost of coverage) so the proposed reward is too large ACA and Wellness Programs: At Odds With EEO Laws and Collective Bargaining Agreements? 2014 Schulte Roth & Zabel LLP. All Rights Reserved.

14 Application to Grandfathered Plans The same wellness program standards apply to grandfathered health plans and non-grandfathered plans ACA and Wellness Programs: At Odds With EEO Laws and Collective Bargaining Agreements? 2014 Schulte Roth & Zabel LLP. All Rights Reserved.

15 WELLNESS PROGRAMS AND COMPLIANCE HIPAA RULES

16 Incentives Carrots/sticks - Health Risk Assessment Lower premium contributions 40% Cash Contribution to HRA, HSA, FSA 17% 38% Median annual value of incentive: Premium reduction $250 Cash $75 Account contribution $200 Lower deductible, copay or other cost sharing 5% Other 14% Mercer s National Survey of Employer-Sponsored Health Plans 2013, Large Employers MERCER 15

17 Incentives Carrots/sticks Lifestyle Management Cash 46% Lower premium contributions Contribution to HRA, HSA, FSA 13% 25% Median annual value of incentive: Premium reduction $480 Cash $100 Account contribution $100 Lower deductible, copay or other cost sharing 4% Other 21% Mercer s National Survey of Employer-Sponsored Health Plans 2013, Large Employers MERCER 16

18 Incentives Carrots/sticks Biometric Screenings Lower premium contributions 42% Cash Contribution to HRA, HSA, FSA 16% 32% Median annual value of incentive: Premium reduction $300 Cash $75 Account contribution $200 Lower deductible, copay or other cost sharing 5% Other 18% Mercer s National Survey of Employer-Sponsored Health Plans 2013, Large Employers MERCER 17

19 Incentives Carrots/sticks - outcomes-based incentives Offer lower premium contributions to non-tobacco users Provide incentives for achieving or maintaining targets for BP, BMI, cholesterol 15% 16% 18% 20% 9% 10% 12% 6% Median outcomes-based incentive amount: $350 Mercer s National Survey of Employer-Sponsored Health Plans 2013, Large Employers MERCER 18

20 HIPAA Nondiscrimination Rules General rule and two exceptions General nondiscrimination rule: HIPAA prohibits group health plans and insurers from discriminating in eligibility, benefits, premiums, or contributions because of an employee s or dependent s medical condition, disability, evidence of insurability, or other health factors How does this rule apply to wellness programs? Premium differentials or other plan-related financial incentives based on health factors generally violate HIPAA s nondiscrimination rules. However, the regulations describe two exceptions: - benign discrimination and - wellness program How do I know if HIPAA applies to a particular wellness program? That is where the Wellness Program Decision Tree comes in MERCER April 25,

21 Wellness Program Decision Tree Does the wellness program s incentive relate to a health plan? Yes. Does the program offer a financial incentive? No. HIPAA nondiscrimination doesn t apply. Consider ADA and state law implications. Yes. Does incentive depend on health status? No. HIPAA nondiscrimination doesn t apply. Consider ADA and state law implications. Yes. Is the program only offered to individuals with an adverse health factor? Yes. Program may fall under the benign discrimination exception. Also consider ADA and state law implications. No. Program must comply with HIPAA regulations. Also consider ADA and state law implications. MERCER April 25,

22 Wellness program exception. May discriminate against individuals based on health status through a wellness program meeting five key requirements Limit on dollar amount rewards don t exceed 30% of total cost of coverage (50% if tobacco is included). Reasonable design reasonably designed to promote health or prevent disease Annual opportunity chance to qualify must be given at least once a year Uniform availability reward available to all similarly situated individuals by allowing waiver or alternative program Disclosure of alternatives availability disclose availability of reasonable alternative standards MERCER April 25,

23 Two categories of wellness programs Participatory program Incentive is based on participation only Attainment of a health standard is not required Must be available to all similarly situated individuals No limit on financial incentives Health contingent wellness program Incentive is based on satisfying a health standard Five standards must be met, including limits on financial incentives MERCER April 25,

24 Examples of participatory and health contingent wellness programs Example 1 Each employee who takes a health risk assessment receives $100. A participatory program because the employee does not have to satisfy any health related standard. Example 2 Each employee has an opportunity to take a health risk assessment. Employees identified as not at risk receive $100. Employees identified at risk must meet with a health coach for three sessions. After doing so, the employees at risk receive $ This is a health contingent wellness program because employees who are identified as at risk must take additional steps to receive the same reward as employees who are not at risk. The reward differs based on the individual s health status. MERCER April 25,

25 Examples of participatory and health contingent wellness programs Example 3 Employees who are smokers are charged an increased premium. The guidance specifically states that this is considered a health contingent wellness program. Example 4 Each employee who takes a health risk assessment receives $100 Each employee who participates in three health coaching sessions receives an additional $100. Both parts of this program are participatory. MERCER April 25,

26 The new guidance Retained the five standards for health contingent wellness programs articulated in the 2006 guidance. Two of the five standards remain unchanged - Reasonably designed to promote health or prevent disease - Annual opportunity to qualify for the incentive Three of the five standards are expanded upon. - Uniformly available to all similarly situated individuals, with reasonable alternatives to qualify for the incentive, with full reward provided retroactively upon completion of alternative - Notice of wellness program alternatives is required - Limits on the financial incentives increased MERCER April 25,

27 Clarification of reasonable alternatives Reasonable alternatives and notice of alternatives Reasonableness is based on facts and circumstances. Must notify participants of the existence of alternatives in descriptions of the program. Do not have to articulate the alternatives in the program description; can wait and provide alternatives upon request. Model language for disclosures can be customized. Your health plan is committed to helping you achieve your best health status. Rewards for participating in a wellness program are available to all employees. If you think you might be unable to meet a standard for a reward under this wellness program, you might qualify for an opportunity to earn the same reward by different means. Contact us at and we will work with you to find a wellness program with the same reward that is right for you in light of your health status. MERCER April 25,

28 Clarification of reasonable alternatives Reasonable alternatives and time frames and many more administrative headaches A window for compliance can be given and is not required again for a year for example: - from 1/15/14 until 3/1/14 employees must submit biometric results from onsite screens, labs or physician offices those with results in acceptable ranges pay lower premiums effective 4/1; anyone missing the window by not participating has lost the incentive until next year - Communications state that an alternative will be available for anyone who cannot meet the standard - Those whose results fail are automatically given an improvement standard which they must meet by 7/1 MERCER April 25,

29 Clarification of reasonable alternatives continued Those whose results fail are automatically given an improvement standard which they must meet by 7/1 - Those who meet the alternative/improvement are given the lower premiums retroactively to 4/1 - Those who fail again must be given another alternative If the alternative is participatory (e.g., taking an online coaching program) then they have no more alternatives and must pass to win the incentive If it is still health contingent but activity not outcomes (e.g., attend a gym 2 x weekly for 3 months) they can still ask for an alternative, but plan can require a physician s note stating that individual's health makes it unreasonably difficult to satisfy the activity - The standard can be waived at any time by an employer but the lower premium must always be retroactive to 4/1 if earned - At any point, if an employee presents a recommendation from his/her personal physician, because of a health condition, those suggestions must be followed so that the employee can earn the reward MERCER April 25,

30 Side note Wellness program subject to COBRA? Examples yes, no, maybe Type of Wellness Program Health Risk Assessment (w/o diagnostic/biometric screening) Biometric screening, including diagnosis of conditions Disease Mgmt. programs treating particular conditions Wellness educational campaign requiring participation only On-site general fitness classes Gym membership Weight management programs Smoking cessation programs Likely a COBRA group health plan? No Yes Yes No No No Maybe* Yes * Health plan status depends on what specific benefits are offered and whether the program diagnoses, cures, mitigates, treats or prevents a disease or health condition (e.g., diabetes or obesity) MERCER 29

31 THE AMERICANS WITH DISABILITIES ACT, THE GENETIC INFORMATION NONDISCRIMINATION ACT AND WELLNESS PROGRAMS Elizabeth Grossman Disability Rights New York February 28, 2014

32 ADA ON EMPLOYEE HEALTH PROGRAMS A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that site. 42 U.S.C (d)(4)(B)

33 PARTICIPATORY OR HEALTH CONTINGENT WELLNESS PLAN? A participatory plan is voluntary Employer must provide reasonable accommodations as with any benefit of employment All employees must be able to participate in the program and receive any offered incentive A health contingent plan is unlikely to be voluntary and may bring about Improper medical exams and inquiries Targeting a particular disability (e.g. high glucose levels) Disparate treatment if employee cannot meet a standard because of disability Disparate impact discrimination against disabled people if they are less likely to meet program goals (also women, people of color and older people are more likely to have many disabilities)

34 MEDICAL EXAMINATIONS AND INQUIRIES UNDER THE ADA A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity. 42 U.S.C (d)(4)(A); 29 C.F.R (c)(1998).

35 INQUIRIES OR EXAMS ARE JOB RELATED AND CONSISTENT WITH BUSINESS NECESSITY 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. Follow up on a request for reasonable accommodation when the disability or need for accommodation is not known or obvious Periodic medical examinations and other monitoring under specific circumstances EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, 1/27/00,

36 EEOC ENFORCEMENT GUIDANCE QUESTION ABOUT WELLNESS PROGRAMS 22. May an employer make disability-related inquiries or conduct medical examinations that are part of its voluntary wellness program? Yes. The ADA allows employers to conduct voluntary medical examinations and activities, including voluntary medical histories, which are part of an employee health program without having to show that they are job-related and consistent with business necessity, as long as any medical records acquired as part of the wellness program are kept confidential and separate from personnel records. These programs often include blood pressure screening, cholesterol testing, glaucoma testing, and cancer detection screening. Employees may be asked disability-related questions and may be given medical examinations pursuant to such voluntary wellness programs. A wellness program is "voluntary" as long as an employer neither requires participation nor penalizes employees who do not participate

37 VOLUNTARINESS IN WELLNESS INCENTIVES EEOC has taken only an unofficial position regarding the ADA see Commission 5/8/13 meeting transcript, HIPPA and APA focus on incentives, but not voluntariness No court has defined the term in the ADA context EEOC has taken an official position regarding GINA

38 EEOC INFORMAL DISCUSSION LETTER An employee's decision not to participate in a health risk assessment results in the loss of the opportunity to obtain health coverage through the employer's plan Even if the health risk assessment could be considered part of a wellness program, the program would not be voluntary, because individuals who do not participate in the assessment are denied a benefit (i.e., penalized for non-participation) as compared to employees who participate in the assessment. 03/06/09

39 SEFF V. BROWARD COUNTY Only case to discuss wellness program financial incentives under the ADA Class action alleging that County s wellness program s medical inquiries and exams violated the ADA where it imposed a $20 charge per paycheck for those who enrolled in group insurance plan but did not participate in the wellness program 11 th Circuit affirmed district court decision on summary judgment holding that wellness program was term of group health program which fell under the ADA s safe harbor provision Safe harbor provision exempts certain insurance plans from the ADA s general prohibitions and provides that ADA should not be construed as prohibiting a covered entity from establishing, sponsoring, observing, or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law Does not discuss voluntariness

40 SEFF V. BROWARD COUNTY SAFE HARBOR The district court held that The wellness program falls under the safe harbor provision because it is designed to develop and administer present and future benefits plans using accepted principles of risk assessment. The program renders aggregate data to the County that it may analyze when developing future benefit plans. The County uses this information to classify various risks and decide what type of benefits plans will be needed in the future in light of these risks. The County is thus determining what kind of coverage will need to be provided. Furthermore, the wellness program is an initiative designed to mitigate risks. It is based on the theory that encouraging employees to get involved in their own healthcare leads to a more healthy population that costs less to insure.

41 EEOC ON SAFE HARBOR Risk classification" is "the identification of risk factors and the grouping of those factors that pose similar risks, and defines "underwriting" as "the application of the various risk factors or risk classes to a particular individual or group (usually only if the group is small) for the purpose of determining whether to provide insurance. The decision to deny or limit coverage, or to charge different rates for coverage, based on a physical or mental impairment must be based on sound actuarial principles. EEOC's Interim Enforcement Guidance on Application of the Americans with Disabilities Act of 1990 to Disability-Based Distinctions in Employer-Provided Health Insurance, 9/18/93,

42 GINA - WELLNESS PROGRAMS Prohibits employers from making employment decisions based on genetic information Requesting, requiring, or purchasing genetic information Genetic information is results of genetic tests or family medical history Exception: Employer may offer voluntary health or genetic services, including wellness programs 42 U.S.C. 2000ff-4(b)(2); 29 C.F.R (b)(2).

43 EEOC REGULATIONS - GINA In order to comply with GINA, a wellness program may not condition receipt of an incentive on an employee providing genetic information. For example, if an employer offers a $150 incentive for employees who complete an health risk assessment that includes questions about employees' current health status and family medical history, it must indicate that any inducement will be made available regardless of whether an employee answers questions that request genetic information. Similarly, an employer may offer a $150 incentive for employees to participate in disease management programs and/or to achieve certain health outcomes, as long as the incentives are offered to employees in addition to those who provided genetic information, such as employees who have current health conditions and employees who engage in practices that may put them at increased risk of developing health conditions in the future. 29 C.F.R (b)(iii).

44 Tom Kennedy Kennedy, Jennik & Murray P.C. February 28, 2014

45 The NLRA requires that employers engage in good faith negotiations that lead to an agreement or to a lawful impasse prior to any changes in mandatory subjects for bargaining concerning the terms and conditions of an employee s employment. NLRB v Katz 369 US 736, 743 (1962).

46 A bona fide wellness program could propose a reward of up to 30% of the total cost of employee-only coverage. Assuming a single employee cost of $600 a month a wellness program could reduce an employees payment by roughly $1.04 an hour a clearly material element of labor costs.

47 A wellness plan may be legal under HIPAA, ERISA, ADA and GINA but still unlawful under the NLRA if implemented without appropriate negotiations reflecting the mandatory nature of this term and condition of employment.

48 On-site blood pressure and cholesterol tests that are wholly voluntary and informational in nature. No union objection. Same program with a de minimis cash reward (e.g.$10) for participating in the tests, doubtful there would be a union objection. Same program with a long term cholesterol or blood pressure monitoring procedure, with a significant monetary reward for participation. A union may want to be involved in bargaining the terms of the program.

49 Same program now morphs into a mandatory monitoring program with financial penalties for failure to participate or for failure to follow directives within the program. Very likely Union demand for bargaining. Imposing a premium or surcharge based on tobacco use or providing a reward to employees for scoring a desired Biometric screening test. Definitely require bargaining

50 Incentive based programs that are incorporated into an overall disease management program and are triggered only upon diagnosis are not likely to require union bargaining but the unilateral implementation of generally available programs with either significant monetary rewards or any material penalties will trigger bargaining.

51 Zipper clauses prevent both parties from seeking to change any terms and conditions of employment during the term of the agreement. These clauses could preclude an Employer from imposing or even bargaining about Wellness Programs issues.

52 A proposal in bargaining to provide complete discretion to the Employer to create wellness program incentives and penalties may violate the McClatchy rule. In KSM Industries 336 NLRB , the Board found unlawful an Employer s proposal to allow it to unilaterally change the health care insurance provider, plan design, the level of benefits, and the administrator during the term of the contract so long as the change is companywide. The Employer's health insurance proposal left no room for bargaining between the Union and the Respondent about the manner, method, and means of providing medical and dental benefits during the term of the contract.

53 Employers may regard a combination of a management rights clause and a clause giving the employer rights to make changes in the administration of its health plan as a waiver of a union s right to bargain regarding Wellness programs. But a union s silence in the face of past unilateral changes does not constitute a waiver of its right to bargain. Owens Corning Fiberglass 282 NLRB 609 (1987); Verizon NY v NLRB 360 F.3d 206, 209 (D.C. Cir, 2004). Each time a bargainable incident occurs, a union has the option of requiring negotiations or not. Pacific Coast Ass of Pulp Mfgrs v NLRB, 304 F.2d 760 (9 th Cir. 1962).

54 An employer may not make unilateral changes to mandatory subjects of bargaining unless the union expresses a clear and unmistakable waiver of its right to bargain. California Pacific Medical Center, 337 NLRB 910 (2002). A party claiming waiver has the burden.

55 The Board standards are (1) language in the collective bargaining agreement, (2) the parties' past dealings, (3) relevant bargaining history, and (4) other bilateral changes that may shed light on the parties' intent. Implied Waiver by past practice but an Employer violates Section 8(a)(5) if the unilateral change at issue constitutes a material departure from well-established past practice Caterpillar Inc. 355 NLRB 521 (2010).

56 Continuation of the Status Quo. A unilateral change made pursuant to longstanding practice can be essentially a continuation of the status quo and not a violation of Section 8(a)(5). Courier Journal 342 NLRB 1093, 1095 (2004). (unilateral increase of health premium lawful where contract gave employer the right to modify or terminate the health care plan, coupled with a long history of similar unilateral changes).

57 Equitable estoppel. A union's constant acquiescence to an employer's unilateral action for sustained periods of time can equitably estop a union from demanding bargaining on that subject. But a union's failure to request bargaining on a topic does not constitute a clear and unmistakable waiver of its right to bargain on that topic at a later time. Brewers & Malsters 342 NLRB No. 49(2004) (union's waiver of right to bargain over prior changes does not waive right to bargain over future changes).

58 POST CONTRACT EXPIRATION CHANGES? In E I DuPont de Nemours 355 NLRB 1084 (2010), the Board held that an Employer with a broad reservation of rights clause in its health plans for bargaining unit members and a history of unilateral changes in those plans violated Section 8(a)(5) by making a unilateral change in health benefits while the parties were engaged in bargaining and the prior contract had expired. In Raytheon Company, 2013 WL , an ALJ held that an Employers unilateral implementation of a series of changes to its health plans (including an increase in its Wellness Award to $250) were unlawful because the collective bargaining contract had expired and negotiations for a renewal agreement were on-going.

59 In Kezi Inc 300 NLRB 594 (1990) the Board allowed an employer to exclude union employees from a 401K Plan that was being implemented because retirement benefits were the subject of good faith bargaining in the last negotiations with the union. An Employer that offers incentives to nonunion employees in the same health plan as represented employees may have to offer the union members the same incentives.

60 In an August 6, 2012 award, Arbitrator John Paul Simpkins concluded that an Employer violated the CBA by establishing and maintaining a tobacco free differential that was a penalty and not an incentive. The union and the Employer reached an agreement in bargaining for a renewal contract that the Employer could make changes to employee contributions to include tobacco free differentials. The prior wellness programs consisted of incentives and the parties never discussed at the table what was meant by the term differentials. The Company instituted a plan that tobacco free employees paid $300 per year less for their health insurance premiums.

61 Arbitrator Simkins concluded that the Employer initially described the tobacco wellness feature of the plan as a reward. The evidence showed that the rate charged non smokers was the actuarially appropriate rate and the $25 extra for smokers had no basis in costs to the plan. The Arbitrator ordered the Employer to provide non smokers with a $25 credit off the costs of the Plan retroactive to the date of the implementation of the new plan.

62 In AAA case 2010 WL , Arbitrator Richard Sambuco considered a new health insurance s carriers failure to continue the prior plan provisions giving participants reduced cost diabetic testing supplies as a part of the Employers wellness program. The CBA allowed the Employer to change health insurance carriers as long as the specifications were maintained --- an apparent if arcane reference to the benefits being provided. The Arbitrator denied the grievance since the certificate of insurance did not refer to the supplemental programs for diabetics so it was not within the specifications that had to be maintained.

63 In AAA 2010 WL , arbitrator Sarah Kerr Garraty held that there was no just cause for a written warning to a deputy sheriff who while serving as an acting shift commander allowed other deputies to take time to exercise in reliance upon the Wellness Program provisions in the CBA allowing Duty Time Workouts. The Arbitrator agreed with the Employer that the contract provisions allowing Duty Time Workouts had never been implemented by the parties but concluded that the grievant had a credible and reasonable belief that the contract allowed such workouts.