Is It Illegal to Pay Your Sickest Employees to Leave Your Plan for the Exchanges?

This is from University of Michigan Law Professor Nicholas Bagley writing at the Incidental Economist: 

I don’t think the legal concerns are warranted. Although the ACA forbids employers from dumping employees with preexisting conditions into high-risk pools, the same prohibition doesn’t extend to exchange plans. Nor does the federal law that governs employee-benefit plans—ERISA—tell employers that they can’t offer sick workers money in exchange for declining health coverage. ERISA was amended in 1996 toprohibit employers from discriminating among workers based on their health status, but only when it comes to eligibility rules and premiums. So long as a chronically ill worker is allowed to participate in the health plan on an equal basis with her colleagues, offering her cash to decline coverage wouldn’t seem to run afoul of the prohibition.

The Americans with Disabilities Act (ADA) also doesn’t appear to present a problem. True, many chronically ill employees are disabled within the meaning of the ADA, and buying out only those employees would draw a distinction between the disabled and the non-disabled. The ADA, however, only prohibits (as relevant here) “classifying” disabled workers in a way “that adversely affects the[ir] opportunities or status.” It’s hard—maybe not impossible, but hard—to see how an offer of cash could “adversely affect” a disabled employee. After all, the offer would only be accepted if the employee believed it made her better off.