Health Benefits Advisor for Employers

Determining Compliance with the HIPAA Provisions in Part 7 of ERISA

Compliance with HIPAA Nondiscrimination Provisions - Actively-at-Work Clauses

Is the plan free of any impermissible active-at-work clauses?

• Yes
• No

Typically, actively-at-work provisions delay eligibility for benefits based on an individual being absent from work. 29 CFR 2590.702(e)(2) explains that actively-at-work provisions generally violate ERISA sections 702(a) (if the clause delays or denies eligibility) and 702(b) (if the clause raises individual premiums or contributions), unless absence from work due to a health factor is treated, for purposes of the plan, as if the individual is at work. Nonetheless, an exception provides that a plan may establish a rule for eligibility that requires an individual to begin work for the employer sponsoring the plan before eligibility commences. Further, plans may establish rules for eligibility or set any individual's premium or contribution rate in accordance with the rules relating to similarly situated individuals in 29 CFR 2590.702(d). For example, a plan that treats full-time and part-time employees differently for other employment-based purposes, such as eligibility for other employee benefits, may distinguish in rules for eligibility under the plan between full- time and part-time employees.

Tip: Carefully examine any actively-at-work provision to ensure consistency with HIPAA.