EEOC Issues Final Wellness Program Amendments to ADA and GINA Regulations

Epstein Becker & Green
Contact

On May 17, 2016, the Equal Employment Opportunity Commission (“EEOC”) published in the Federal Register its final rule setting forth the EEOC’s interpretation of the extent to which employers may use incentives to encourage employees to participate in wellness programs that ask them to respond to disability-related inquiries and/or undergo medical examinations that employers otherwise could not require under the Americans with Disabilities Act (“ADA”).[1] At the same time, the EEOC also published its final rule regarding the extent to which an employer may offer incentives for an employee’s spouse to participate in a wellness program under the Genetic Information Nondiscrimination Act (“GINA”).[2] The final ADA and GINA rules, applicable to plan years beginning on or after January 1, 2017, apply to all wellness programs that ask employees to respond to disability related inquiries and/or undergo medical examinations, whether the program is participatory or health-contingent, and regardless of whether the program is offered (i) only to employees enrolled in an employer-sponsored group health plan; (ii) to all employees, regardless of whether they are enrolled; or (iii) by employers that do not sponsor a group health plan. The final ADA and GINA rules do not apply, however, to wellness programs that do not include such inquiries.

The final rules still largely attempt to mandate a fix where no real problem was ever identified. While certain groups decry wellness programs as supposedly posing great risks for employees, there is no documented record that employers have obtained and misused information gathered in connection with wellness programs. The final ADA and GINA rules still tend to undercut the full promise of wellness programs, which are a vital tool in reaching the goal of the Affordable Care Act (“ACA”) to improve the health of American employees and to reduce spiraling health care cost increases.

The final ADA rule largely follows proposed regulations in a Notice of Proposed Rule Making (“NPRM”) published in April 2015,[3] particularly as to the amount of incentive that can be offered for both participatory and health-contingent wellness programs, but adds additional provisions regarding when a wellness program meets the requirement of being “reasonably designed to promote health or prevent disease,” plus additional confidentiality protections. The EEOC refused to modify the NPRM’s limitation on incentives to 30 percent of the self-only premium to allow an incentive of 30 percent of the premium for family or dependent coverage, as do the tri-agency regulations issued in 2013 by the U.S. Departments of Labor, Health and Human Services, and the Treasury under the ACA (“Tri-Agency Regulations”).[4]

The EEOC in the NPRM had requested comments as to whether the final ADA rule should provide employees an exemption from completing a risk assessment or having a medical exam if they instead provided a doctor’s certification that they were under medical care. The final ADA rule fortunately does not adopt this idea, which would undercut the effectiveness of wellness programs.

The final GINA rule also largely follows proposed regulations published in October 2015,[5] again in particular as to the amount of incentive that can be offered, but with added provisions regarding when a wellness program is “reasonably designed to promote health or prevent disease.” As discussed below, however, the final GINA rule prevents incentives for employees’ children who participate in wellness programs.

Notably, the final ADA rule continues to contain provisions that conflict with the Tri-Agency Regulations, particularly a provision that allows a wellness program incentive of 50 percent of the full cost of coverage for tobacco cessation programs, which the final ADA rule limits to 30 percent if there is a biometric screening or other medical examination that tests for the presence of nicotine or tobacco. This has already met with opposition from Congress. On May 16 2015, Senate Health and Labor Committee Chairman Lamar Alexander said that the rules “contradict the law and continue the confusion the agency has caused . . . .”[6] The EEOC’s more restrictive provisions are likely to reduce participation in tobacco cessation wellness programs.

Major Provisions of the Final Rules

The final ADA rule expressly permits employers to offer limited incentives of up to a maximum of 30 percent of the total cost of employee-only coverage, whether in the form of a reward or penalty, to promote an employee’s participation in a qualifying wellness program that includes disability-related inquiries (usually through a Health Risk Assessment (“HRA”)) or biometric examinations, as long as the participation is voluntary.[7] Notably, the calculation of incentives under the final ADA rule must include both financial and in-kind incentives, as well as “de minimis” incentives.[8] In this regard, the EEOC rejected proposals by various commenters to exclude in-kind and de minimis incentives. Under the final GINA rule, no such inducement can be offered to provide genetic information but may be offered for completion of HRAs that include questions about family medical history or other genetic information, provided it is made clear that the inducement is available whether or not the questions regarding genetic information are answered.[9]

Similarly, the final GINA rule expressly permits employers to offer the same incentives to an employee whose spouse provides information about the spouse’s manifestation of disease or disorder as part of an HRA, but not for the spouse’s providing his or her own genetic information, including results of his or her genetic tests, or for information about the manifestation of disease or disorder in an employee’s children or for genetic information about an employee’s children, including adult children.[10] In addition, a covered entity may not deny access to health insurance benefits due to a spouse’s refusal to provide information to an employer-sponsored wellness program about his or her manifestation of disease or disorder.[11]

Under the final ADA rule, “voluntary” means that an ADA covered entity does not (i) require employees to participate, (ii) deny coverage under any of its group health plans or limit the extent of such coverage for an employee who refuses to participate in a wellness program, and (iii) take any adverse employment action or retaliate against, interfere with, coerce, intimidate, or threaten employees who do not participate.[12]

Further, the final ADA rule provides that to insure that participation in a wellness program that includes disability-related inquiries or medical examinations and is part of a group health plan is truly voluntary, an employer must provide an employee with a detailed notice clearly explaining (i) what medical information will be obtained, (ii) who will receive the medical information, (iii) how the medical information will be used, (iv) the restriction on such information’s disclosure, and (v) the methods that the covered entity will employ to prevent improper disclosure.[13] Within 30 days after publication of the final ADA rule, the EEOC intends to provide on its website an example of a notice that complies with this rule.

Both the final ADA and GINA rules require that a qualifying wellness program be “reasonably designed to promote health or prevent disease.” The program must have “a reasonable chance of improving the health of, or preventing disease in, participating employees”; must not be “overly burdensome”; may not be a subterfuge for violating the ADA, GINA, or other employment discrimination laws; and may not be “highly suspect in the method chosen to promote health or prevent disease.” Whether a program meets this standard is to be evaluated in light of all the relevant facts and circumstances.[14] Despite many comments that the EEOC should not be determining the merits of the design of wellness programs, the final rules continue to give this authority to the EEOC. It is quite possible that this provision could retard the development of novel wellness programs that respond to the health issues and needs of particular employers’ workforces.

Both final rules state that the collection of information without providing results, follow-up information, or advice would not qualify “unless the collected information actually is used to design a program that addresses at least a subset of the conditions evaluated.”[15] This does raise some concern about the permissibility of data collection that may assist in the design of more effective future plans even if not fully utilized in the current plan year. The final ADA rule also states that a program that “exists mainly to shift costs to targeted employees based on their health or simply to give an employer information to estimate future health costs” would not qualify,[16] but no evidence of such plans has been observed. Similarly, the final GINA rule also states that a program that imposes a penalty or disadvantage on an individual because a spouse’s manifestation of disease or disorder prevents or inhibits the spouse from participating or achieving a certain health outcome is not “reasonably designed.”[17]

The final ADA rule also addresses confidentiality of medical information. Although it makes no changes to the current ADA confidentiality rules, it rule adds two new subsections. The first new subsection generally requires that medical information collected through a wellness program may be provided to the ADA covered entity only in aggregate terms that do not disclose, or are not reasonably likely to disclose, the identity of specific individuals, except as needed to administer the plan.[18] In accompanying guidance, the EEOC states that a covered entity likely will be able to comply with this obligation by complying with the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule.[19]

The second new subsection, added in response to comments suggesting that participation might result in employees inadvertently waiving critical confidentiality protections, provides that an ADA covered entity may not require an employee to agree to the sale, exchange, sharing, transfer, or other disclosure of medical information (except to the extent permitted to carry out specific activities related to the wellness program), or to waive confidentiality protections available under the ADA, as a condition for participating in a wellness program or receiving a wellness program incentive.[20] The final GINA rule contains a similar provision with respect to genetic information, including information about the manifestation of disease or disorder of an employee’s family member.[21] The final GINA rule does not, however, adopt any other new protections addressing confidentiality of genetic information.

Notably, despite two well-reasoned court decisions to the contrary,[22] the final ADA rule expressly states that the statutory “safe harbor” provision set forth in 42 U.S.C. § 12201(c), which, in relevant part, states that an insurer or entity that administers benefit plans is not prohibited 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 apply to wellness programs, even if such plans are part of a covered entity’s health plan.[23] The EEOC has already begun to use this new regulation as a sword in pending litigation, arguing that its regulation is due substantial deference and therefore the defendant’s safe harbor defense should be dismissed.[24] The basis for deference here seems highly questionable under applicable administrative law standards. Moreover, the legal interpretation of the courts seems more correct than the position of the final ADA rule.

Lastly, the final ADA rule explicitly notes that it does not relieve a covered entity from the obligation to comply with the nondiscrimination provisions of Title VII of the Civil Rights Act of 1964 (“Title VII”), the Equal Pay Act, the Age Discrimination in Employment Act, GINA, or other sections of Title I of the ADA.[25] The final GINA rule similarly restates a prior provision that it does not limit the rights of individuals under the ADA, other applicable civil rights laws, or under HIPAA.[26] Significantly, the EEOC’s guidance accompanying the final ADA rule explicitly notes that discrimination on the basis of sex includes pregnancy, gender identity, transgender status, and sexual orientation—the latter two of which are the subject of ongoing litigation as to whether they are covered by Title VII.[27] The final ADA rule also provides that an employer may be able to avoid a disparate impact claim regarding a wellness program requirement by offering and providing a reasonable alternative standard when a health contingent wellness program would require meeting a particular standard.[28]

Continued Conflict Between the Final Rules and the ACA Tri-Agency Regulations

The 2013 ACA Tri-Agency Regulations increased the maximum total health-contingent wellness program incentive to 30 percent of the total cost of coverage under the group health plan (including 30 percent of the family or dependent coverage costs where applicable) and to 50 percent for tobacco cessation programs. The EEOC’s final rules depart from the Tri-Agency Regulations by extending the 30 percent incentive limit under health-contingent wellness program to participatory programs, which the Tri-Agency Regulations do not limit. Participatory wellness program do not include any condition for obtaining a reward-based incentive that turns on an individual satisfying a standard related to health. A health-contingent wellness program requires an individual to satisfy a standard related to a health factor to obtain a reward. The EEOC’s inclusion of participatory wellness programs is unnecessary and reduces the available incentive to participate in such programs.

In addition, the final ADA rule excludes the additional 20 percent incentive available under the Tri-Agency Regulations for wellness programs related to tobacco cessation if the program includes biometric screening or other medical examinations that test for the presence of nicotine or tobacco. The EEOC states, however, that a tobacco smoking cessation program that merely asks employees whether or not they use tobacco (or whether or not they ceased using tobacco upon completion of a program) does not include disability-related inquiries or a medical examination and thus could qualify for the 50 percent incentive.[29] The EEOC’s 30 percent exclusion is significant because it could affect affordability as well as reduce incentives for participation. Moreover, verification is particularly essential to incentivize the difficult task of tobacco cessation.

Further and of great importance is that the final rules still calculate the 30 percent incentive based only on the total cost of self-only coverage, while the Tri-Agency Regulations base the calculation on the total cost of coverage for the individual and any spouse or dependents to whom the wellness programs are available where family or dependent coverage is selected. Again, this reduces the incentive to participate.

What Employers Should Do Now

Employers should review their existing wellness programs and related incentives and begin making any changes necessary to comply with the final ADA and GINA rules in advance of the requirement to implement them for new plan years beginning on or after January 1, 2017. More specifically, employers should do the following:

  • Evaluate the extent to which the 30 percent limit on incentives must be extended to any participatory wellness programs.
  • Evaluate the extent to which any current 30 percent incentives are based on the total cost of coverage for family or dependent coverage and whether to apply the new limit of 30 percent of the total cost of employee-only coverage for both employees and for spouses who participate in a wellness program.
  • Determine whether affordability is affected if the incentive is lowered for employees currently enjoying a tobacco cessation incentive above 30 percent consistent with the ACA rule and, if so, begin weighing the options on whether and how to adjust it accordingly.
  • Make sure a wellness program cannot reasonably be read to require employee participation or to deny or limit group health plan coverage as a consequence for nonparticipation.
  • Prepare draft notices that comply with the above-mentioned requirements regarding the obtaining, receipt, use, restrictions on disclosure, and methods employed to prevent improper disclosure of medical information; watch for the EEOC to publish its model notice; and then adjust draft notices accordingly.
  • Confirm wellness program compliance with the HIPAA Privacy Rule, and, if the wellness program is not governed by HIPAA, consider implementing a HIPAA-compliant confidentiality policy. Make sure that all employees who handle confidential health information are properly trained.
  • Consider whether, notwithstanding the final ADA rule, it makes sense to make a wellness program part of your health benefit plan, thus, potentially meeting the ADA bona fide benefit plan safe harbor as endorsed by the U.S. Court of Appeals for the Eleventh Circuit in Seff v. Broward County and currently on appeal before the Seventh Circuit in EEOC v. Flambeau, Inc.
  • Keep in mind that compliance with the final ADA and GINA rules concerning wellness programs will not relieve you and other covered entities of the obligation to comply with other portions of the ADA, as well as other employment discrimination laws in connection with wellness programs.

In light of the EEOC’s sometimes conflicting interpretation of wellness program requirements with the Tri-Agency Regulations, conferring with legal counsel may be appropriate.


ENDNOTES

[1] EEOC, Regulations Under the Americans With Disabilities Act, 81 Fed. Reg. 31125 (May 17, 2016), available at https://www.federalregister.gov/articles/2016/05/17/2016-11558/regulations-under-the-americans-with-disabilities-act.

[2] EEOC, Genetic Information Nondiscrimination Act, 81 FR 31143 (May 17, 2016), available at https://www.federalregister.gov/articles/2016/05/17/2016-11557/genetic-information-nondiscrimination-act.

[3] See Epstein Becker Green Health Care and Life Sciences Client Alert, “EEOC Issues Proposed Wellness Program Amendments to ADA Regulations” (April 17, 2015), available at http://www.ebglaw.com/news/eeoc-issues-proposed-wellness-program-amendments-to-ada-regulations/.

[4] 26 C.F.R. § 54-9802-1(f); 29 C.F.R § 2590.702(f); and 45 C.F.R. § 146.121(f).

[5] EEOC, Genetic Information Nondiscrimination Act of 2008, 80 Fed. Reg. 66853 (Oct. 30, 2015), available at https://www.federalregister.gov/articles/2015/10/30/2015-27734/genetic-information-nondiscrimination-act-of-2008.

[6] L. Alexander, Press Release, “Alexander: EEOC Workplace ‘Wellness’ Rules Will Make it Harder for Employees to Choose Healthy Lifestyles and Save Money” (May 16, 2016), available at http://www.alexander.senate.gov/public/index.cfm/pressreleases?ID=DE681569-0ED5-4563-A1FA-8BEB2BB6A17D.

[7] 29 C.F.R. § 1630.14(d)(3). There are special formulas for calculating the 30 percent where participation is offered even if an employee is not enrolled in a health plan, where the employer offers more than one health plan but the employee is not enrolled, or where no group health plan is offered. 29 C.F.R. § 1635.8(d)(3)(i)-(iv).

[8] 29 C.F.R. §1630.14(d)(3).

[9] 29 C.F.R. § 1635.8(b)(2)(ii).

[10] 29 C.F.R. § 1635.8(b)(2)(iii).

[11] 29 C.F.R. § 1635.8(b)(2)(iv).

[12] 29 C.F.R. § 1630.14(d)(2)(i)-(iii).

[13] 29 C.F.R. § 1630.14(d)(2)(iv).

[14] 29 C.F.R. § 1630.14(d)(1); 29 C.F.R. § 1635.8(b)(2)(i)(A).

[15] 29 C.F.R. § 1630.14(d)(1); 29 C.F.R. § 1635.8(b)(2)(i)(A).

[16] 29 C.F.R. § 1630.14(d)(1).

[17] 29 C.F.R. § 1635.8(b)(2)(i)(A).

[18] 29 C.F.R. § 1630.14(d)(4)(iii).

[19] Appendix to Part 1630, Section 630.14(d)(4)(i) through (v): Confidentiality.

[20] 29 C.F.R. § 1630.14(d)(4)(iv).

[21] 29 C.F.R. § 1635.8(b)(2)(vii).

[22] Seff v. Broward County, 788 F. Supp. 2d 1370 (S.D. Fla. 2011), aff’d, 691 F.3d 1221 (11th Cir. 2010); EEOC v. Flambeau, Inc., No. 14-cv-638-bbc, 2015 U.S. Dist. LEXIS 173482 (W.D. Wis. Dec. 30, 2015), appeal filed, No. 16-1402 (7th Cir. Feb. 25, 2016).

[23] 29 C.F.R. § 1630.14(d)(6).

[24] EEOC v. Orion Energy Systems, No. 1:14-cv-01019, Notice of Supplemental Authority (D.E. 47-1) (E.D. Wis. filed May 17, 2016).

[25] 29 C.F.R. § 1630.14(d)(5).

[26] 29 C.F.R. 1635.8(b)(2)(vii).

[27] Appendix to Part 1630, Section 1630.14(d)(5): Compliance With Other Employment Nondiscrimination Laws.

[28] 29 C.F.R. § 1630.14(d)(5).

[29] Appendix to Part 1630, Application of Section 1630.14(d)(3) to Smoking Cessation Programs.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Epstein Becker & Green | Attorney Advertising

Written by:

Epstein Becker & Green
Contact
more
less

Epstein Becker & Green on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.