Are there any laws (discrimination or otherwise) that would prevent an

[Guest laural]

Are there any laws (discrimination or otherwise) that would prevent an employer from making an employee's contribution to the medical plan based on gender, age and/or smoking status?

[Guest Paul]

I have asked this question and no one has responded. My guess (and it is a guess) you may be able to take into account age and you may be able to give a discount for non-smokers but you may not be able to penalize smokers. I think gender can be a problem. Again, I have asked and not gotten any answers and these are my guess. The statutes involved are ADEA, HIPAA and Title VII.

[KIP KRAUS]

Laural:

I’m no attorney, but I wouldn’t touch this scenario with a ten-foot pole. In my opinion you would be hard pressed to justify any contribution based on age or gender. Who is to say that one sex is more risky than the other therefore warranting a different contribution. Are you going to charge child age women more than males of the same age, because they can get pregnant, what about Title VII of the Civil Rights Act? The same thing applies to age, is a 50 year old more likely to have an illness, accident than a 25-year old? Sounds like law suit city to me.

[jeanine]

Are you asking because you (your company) are thinking of doing this or are you asking because this is being done to you? If you are thinking implementing this, forget it. The reason that I didn't respond earlier is that I didn't even know where to start in explaining how wrong this would be. Run to an attorney if someone is applying this to you, run to an attorney if you're being pressured to do something like this as part of your job so you can have backup on your decision not to apply this type of discriminatory behavior.

I do agree with Paul on the smoking penalty, but even that is a tough call.

[Guest KGibson]

The only SAFE way to address differences in what premium portion the employee pays is to set up a defined contribution plan. Medical spending credits can be given to employees based on Class, (such as execs verses middle management verses hourly) or based on seniority with the company. But all who meet that class definition must be included. But, I agree with all others that to base it on the areas you have mentioned (race, age, gender, and smoker penalties) would be a very dangerous line to cross.

[david rigby]

Add the Pregnancy Discrmination Act of 1978 to the list Paul mentioned.

[Kirk Maldonado]

I disagree with Paul. There is no substantive difference between a discount for non-smokers and a surcharge for smokers. You better look at the ADA for guidance on this one.

[Guest Lisssi]

Some states, for instance NY where we are, (and maybe some localities too?) have specific laws that protect smokers from employment discrimination. NY state law prohibits discrimination against employees for engaging in any legal activities outside of work. And I know some states have laws particularly protecting the rights of smokers in terms of employment. The ADA,though, does not apply IMO; smoking is not considered a disability in any court case I've heard of.

There are also morale issues to consider; employees may not like your interfering with what they consider their private business.

In short, I agree with the other posters that it's a probably trouble; certainly talk to an employment lawyer first.

[Alf]

Age and sex are out. Smoking can be done. I don't have any authority handy, but that is what is done in the market. Smoking is not (yet) a protected right.

[Kirk Maldonado]

Another statute that might apply is the Equal Pay Act.

[Guest Ed F]

HIPAA prevents an employer from charging an employee a higher premium based on a health status related condition (i.e. smoking addiction) or evidence of insurability. If you offer a smoking cessation program to all employees, and award a discount to all who take and complete the program, taht's OK, but you can't deny the discount to a smoker who completes the program but is unable to stop smoking. There are state laws that prohibit discrimination in terms and conditions in employment based on smoking. These likely are not preempted by ERISA.

If an employee is over age 40, I believe the ADEA--and likely state age discrimination laws--will prevent a higher premium for the older person unless you can actuarially justify the rate, under the ADEA's "equal cost-equal benefit" analysis. But what a nutroll that would be. Different rates among age bands for younger workers is probably out under HIPAA's general rule.

Gender-based rates have to be illegal under Title VII and typical state sex-discrimination laws.

[Everett Moreland]

You may find the answer to your questions about age and sex discrimination at these cites:

http://www.eeoc.gov/docs/benefits.html

http://www.eeoc.gov/docs/qanda-benefits.html

[Bill Ecklund]

Under the ADEA, an older employee who chooses to participate in a voluntary plan can be required to pay more for the benefit, but only if the employee does not pay a greater percentage of his/her premium cost than younger employees do. (see EEOC compliance manual sec 3, III A. 5.) In other words, if the health premium is age rated, the employee can be required to pay a greater amount as a co-pay, as long as it is not a greater percentage than a younger employee