Client Alerts

Does offering incentives to disclose medical information violate the ADA and GINA?

Many companies have jumped on the “wellness” bandwagon, offering programs in varying forms to their employees and employees’ families to promote health and prevent disease. These programs support companies’ legitimate interests in managing health coverage costs, encouraging employees to take a more active role in their health care coverage and promoting employee satisfaction. To induce participants, companies often offer incentives in the form of health coverage premium discounts.

We previously published a Client Alert concerning NHTSA’s proposal to establish a new Federal Motor Vehicle Safety Standard (FMVSS) -- No. 150 – that would mandate vehicle-to-vehicle (V2V) communications for new light vehicles and to standardize the message and format of V2V transmissions. client-alert-detail/NHTSAa-Proposal-to-Mandate-that-Automobile-Manufactures-Incorporate-Vehicle-to-Vehicle-Capabilities-into-New-Cars.html As we explained, because V2V communications can be a critical component of automated vehicle technologies, the automobile industry should take this opportunity to comment on the NHTSA proposals. NHTSA will rely on the record developed in this proceeding to determine whether V2V should be mandated, as well as whether any of the details of its proposals should be adopted as proposed or refined in some ways. The comment date will be triggered by the publication of the NHTSA Notice of Proposed Rulemaking (NPRM) in the Federal Register, which has now been scheduled to occur on January 12, 2017. Comments are due 90 days after that date, which would be April 12, 2017. Lawyers with Butzel Long will be happy to assist with formulating and submitting comments to NHTSA.

Automotive technology continues to dominate the talk of CES.  From ultrasonic holographic haptic controls to advanced mapping software that augments the driver’s reality, it is clear that mobility technology is a hot commodity.  Accompanying these advances are specific legal issues that follow the 2017 legal takeaways highlighted in yesterday’s summary Staying Connected at CES 2017.

With CES underway, it is clear that the automobile is poised to be the king of the show. Faraday Future demonstrated the ups and downs of emerging technology, particularly the default mode programming. The Toyota Concept-i offers a vehicle that wants to establish a "relationship" with its drivers. The Chrysler Portal highlights the ingenuity that millennial engineers bring to the user interface of electric and autonomous vehicles.

Major changes to U.S. trade policy, such as withdrawal from NAFTA, were among the most prominent of Donald Trump’s campaign promises.  Now that he is the President-elect, it is most appropriate to examine current law to ascertain whether he can deliver on those campaign promises.  

On December 9, 2016, Michigan Governor Rick Snyder signed landmark autonomous vehicle legislation, placing Michigan as one of the most manufacturer-friendly states to develop and test driverless systems. As we noted in our August 11, 2016 Alert, this legislation is unique in that it allows testing of vehicles without the presence of driver, a direction that will significantly impact the mobility economy.

What NHTSA is Proposing

On December 13th, NHTSA issued a Notice of Proposed Rulemaking (NPRM) to establish a new Federal Motor Vehicle Safety Standard (FMVSS) that would require automobile manufacturers to incorporate vehicle-to-vehicle (V2V) communications capabilities into all new light vehicles (https://www.nhtsa.gov/About-NHTSA/Press-Releases/nhtsa_v2v_proposed_rule_12132016). The NPRM would also proposed standardized Basic Safety Messages (BSM) communicated between vehicles to ensure interoperability. NHTSA does not propose initially to mandate or specify particular applications using the V2V communications (such as Intersection Movement Assist (IMA) and Left Turn Assist (LTA)), but would allow the industry to develop and deploy particular safety applications.

President Obama signed the “21st Century Cures Act” on December 13, 2016, which included a critical change to the Internal Revenue Code (“Code”) and the Employee Retirement Income Security Act (“ERISA”) affecting certain small employers. Specifically, employers that are exempt from the “pay-or-play” rules of the Patient Protection and Affordable Care Act (the “ACA”) may now offer employees a “qualified small employer health reimbursement arrangement” (“QSEHRA”) for plan years beginning after December 31, 2016.

Given the lack of specificity in the Trump campaign with regard to telecommunications policies, trying to forecast the effect of his election on telecommunications regulation involves a fair measure of speculation. But there are some impacts that appear to be fairly clear. Although the Federal Communications Commission (FCC) is ostensibly an independent agency, the influence of the White House was very significant, as evidenced by the FCC's actions in the Open Internet proceeding (also referred to as "Net Neutrality") of reclassifying Internet access service as a Title II telecommunications service after a request to do so by President Obama. The influence of the tech industry on the Obama Administration was significant, and the White House's bias in favor of policies championed by Silicon Valley was embraced by the FCC, as evidenced by a number of rulemaking proceedings.

Recent U.S. immigration policy hasn’t created many winners, but one group that qualifies to some extent are the thousands of children brought into the United States illegally by their parents, often referred to as DREAMers. Unfortunately, they may quickly become losers if President-Elect Trump decides to undo DACA -- the Deferred Action for Childhood Arrivals program.

Businesses have something truly to be thankful for this year, well, at least for now. On Tuesday, November 22, 2016, the federal district court for the Eastern District of Texas issued a preliminary injunction enjoining the Final Overtime Rule on a nationwide basis. The Final Overtime Rule, which was projected to affect over four million workers, was set to go into effect on December 1, 2016. But, by yesterday’s court’s ruling, the Department of Labor is now enjoined from implementing and enforcing the Final Overtime Rule.

President-elect Donald Trump stated during his campaign that he would renegotiate or withdraw from the North American Free Trade Agreement (“NAFTA”). He cites the United States’ $58-billion trade deficit with Mexico and refers to examples like Ford’s recent decision to build a plant in Mexico as evidence that NAFTA has displaced jobs that otherwise would have remained in the United States. The President-elect has also promised to raise tariffs on trade partners, potentially ushering in a trade war and paving the way for protectionist U.S. policies that critics argue could diminish U.S. influence.

Companies Consider Negotiating Assurances with UK Trade Ministry or Local Governments

On Sunday, October 2, the United Kingdom’s (UK) Prime Minister, Theresa May, announced plans to trigger Article 50 of the Treaty of Lisbon by the end of March, 2017, starting the two-year clock for withdrawal of Britain from the European Union (EU) . May identified the goal of making Britain a “sovereign nation again,” in control of its own immigration and with its own laws. As the world’s fifth largest economy, Britain will become “truly global,” May said, looking beyond Europe as its largest trade partner and naming China, India, Canada, Mexico, South Korea, Australia, New Zealand and Singapore among the nations prepared to sign major free trade deals with the UK.

The Internal Revenue Service has recently announced cost-of-living adjustments applicable to dollar limitations for retirement plans (and other items) for 2017. Many of the retirement plan limitations will change for 2017 because the increase in the cost-of-living index met the statutory thresholds that trigger their adjustment. However, other limitations will remain unchanged because the increase in the index did not meet the statutory thresholds that trigger their adjustment.

November marks the month new safety regulations in Mexico will enter into effect for light motor vehicles.

The Department of Justice Antitrust Division (DOJ) and the Federal Trade Commission (FTC), the two federal agencies responsible for enforcing the antitrust laws, have issued a “Guidance” document for HR Professionals, outlining the types of compensation and hiring agreements that the enforcement agencies will challenge as violations of the antitrust laws. The Guidance document does not represent a change in antitrust law, but it does represent a clear signal that the agencies are placing unprecedented importance on policing such agreements.

Responding to growing threats to vehicle safety from cybersecurity vulnerabilities, NHTSA released guidelines for cybersecurity best practices for motor vehicle OEMs, suppliers and aftermarket manufacturers.

Introduction

On October 24, 2016, the National Highway Traffic Safety Administration (NHTSA) announced its non-binding guidance titled “Cybersecurity Best Practices for Modern Vehicles” (Guidelines).

In the wake of the well-publicized Jeep hacks (summer 2015) and last Friday’s DDoS attack against the managed DNS infrastructure of Dyn, the need to protect the safety of drivers and passengers against cyber-perils has never been greater. Acknowledging its responsibilities under the Motor Vehicle Safety Act (Act), NHTSA issued this guidance to promote cybersecurity practices that ensure vehicle systems and related software are designed free of unreasonable risks to motor vehicle safety. To date, NHTSA has used its enforcement authority to recall nearly 1.5 million vehicles due to cybersecurity vulnerabilities deemed potential safety risks under the Act.

The Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) was passed in 2015 and is scheduled to take effect on January 1, 2017. Final regulations are anticipated in November, 2016 leaving little time for provider implementation. The stated purpose of MACRA was to end the sustainable growth rate formula, establish a new framework for rewarding health care for providing better care and combine existing quarterly reporting programs into one system. These three changes are known as the “quality payment program” (“QPP”).

The U.S. Department of Health and Human Services, Office of Civil Rights (“OCR”) has raised the stakes for Covered Entities and Business Associates making it clear that it will no longer treat small breaches as a low priority. On August 18, 2016, OCR announced its new Initiative to increase the investigative and enforcement efforts in its Regional Offices concerning small breaches (those effecting less than 500 individuals).