Seeking Opinions: EAP as ERISA Plan

[sloble@crowleyfleck.com]

I am aware of the DOL rulings that say if an EAP provides any counselling it is an ERISA plan. I am also aware that many employers do not treat their EAPs as ERISA plans. Does anyone have any other straight-face arguments for not treating an EAP as an ERISA plan (e.g., not maintained by employer, not providing ERISA benefits).

Unfortunately this one provides some counselling and is 100% employer paid by insurance through APS healthcare.

[Kirk Maldonado]

Have you considered an insanity defense? (Pun intended.)

[GBurns]

Is this EAP part of the employee benefits plan?

Is it conceivable that based on OSHA, WC and General Liability experiences or EEOC violations such as employee sexual harrassment, an employer decides to put in EAP as part of reducing its liability in those areas?

Give the employees counseling so that you reduce the incidents of harassment, violence, suicide etc.

If so, would this not be an expense similar to WC and GL premiums and be treated similarly, therefore no ERISA.

[Kirk Maldonado]

GBurn:

What would be the statutory provision in ERISA on which you would base that argument?

[GBurns]

Since it is not for the benefit of the employees any more than WC is, it should not be regarded as a "wefare plan" or other ERISA covered classification. If it does not meet the statutory classification definition, then it should not be a covered item.

By the way, it should be a stand alone plan and not a part of or associated with the medical plan. Neither should it be part of the employee benefits package.

Its purpose would be just like OSHA safety training programs which is for the benefit of the employee (so that they do not injure, hurt or kill themselves) but is not treated as being an ERISA plan. The guise would be the same, it is for the benefit of the e mployer in order to meet safety standards thereby complying with OSHA etc while also reducing WC and other insurance premium costs.

I did not say that it would fly, I am posing possible ideas. But now that I think of it, it is not so radical an idea. I wish that I had the time to check to see what certain large employers are doing in this regard.

[Kirk Maldonado]

GBurns:

You didn't answer my question.

I think that you need to read the wording of the statute before you take positions as to what the words mean.

[GBurns]

Then I do not understand your question.

Maybe you should tell us what the words that I do not understand mean?

In any case these are the statutory definitions:

"Sec. 1002. Definitions

For purposes of this subchapter:

(1) The terms ``employee welfare benefit plan'' and ``welfare plan''

mean any plan, fund, or program which was heretofore or is hereafter

established or maintained by an employer or by an employee organization,

or by both, to the extent that such plan, fund, or program was

established or is maintained for the purpose of providing for its

participants or their beneficiaries, through the purchase of insurance

or otherwise, (A) medical, surgical, or hospital care or benefits, or

benefits in the event of sickness, accident, disability, death or

unemployment, or vacation benefits, apprenticeship or other training

programs, or day care centers, scholarship funds, or prepaid legal

services, or (B) any benefit described in section 186© of this title

(other than pensions on retirement or death, and insurance to provide

such pensions)."

Where would an EAP set up the way I described and for the purpose described, fit into the ERISA definitions?

The DoL has opined that EAPs are ERISA but note that is if the services are deemed as being medical treatment. As a result it would mean that there would have to be 2 EAPs and the coverage segregated to meet or beat the DoL requirements.

Why do OSHA safety training programs not fall under ERISA?

Now that I have given my side of a possible scenario as requested by the poster, now its your turn to state why it might not work.

In any case the Original Poster asked for suggestions as to how to get around ERISA. Can you offer a suggestion or even state your reasons why no suggestions?

[GBurns]

AshleL

Have you had any further thoughts or other responses?

I thought that by now there would have been some other suggestions or at least a critique of 2 of my ideas.

You state in your OP that you are aware of employers who treat their EAP as not ERISA. Can you give me any further info?

[Kirk Maldonado]

GBurns:

If the plan is providing health benefits, which is included in the language you quoted, then why isn't it subject to ERISA?

Please explain.

[GBurns]

That is why it is separated in to 2 plans. 1 with what might be regarded as health/medical related and the other with the other items that can be treated as safety issues just like safety issues are treated as being OSHA or WC training.

A good OSHA training class covers workplace decorum/behaviour, workplace violence and even ergometrics. Anything that relates to safety and injury on the job, whether how not to cause it, how to avoid it etc. For example advice on why not to come to work if your mind is on a household event that will distract you and potentially cause injury to another worker or yourself. How broad do you think this could be?

A WC injury reduction class could cover on the job safety, causes of injuries, treating of injuries, avoidance of injuries and anything related including mood swings, depression, conflicts etc. Anything that can reduce injuries and claims.

[Kirk Maldonado]

I misinterpreted your prior posting. The fact that you were referring to a bifurcated approach was more clear in your last post, although in retrospect, I should have realized that if I had read your earlier posts more carefully.

I agree that, if the coverage of the EAP is properly restricted along the lines of what you suggested, then it would not be subject to ERISA.

[GBurns]

Now the question is : How well can it be restricted and still serve the purpose? Of course half way might be better than none.

[sloble@crowleyfleck.com]

GBurns/Kirk, etc. Thanks for your thoughtful responses. I was out of town most of last week. The EAP is not part of the health plan, and GBurns it is interesting to consider looking at at it as a safety/liability OSHA/WC type protection as opposed to a health plan. It IS totally stand-alone. In fact, the insured health plan has some of its own mental health coverage separate from the EAP.

I am going to research this a little and I will definitely let you know if it goes anywhere. THANKS again.