On April 20, the EEOC issued proposed regulations on Wellness Programs to address concerns that some such programs may run afoul of the ADA.
The EEOC will be accepting comments on the same until June 19, 2015. Click here for the regulations and instructions on how to submit comments.
While the final regulations may vary from what is included in the proposed regulations, especially depending upon what types of public comment the EEOC receives, some of the highlights of the proposed changes include the following:
- Limits, in some circumstances, to thirty percent the incentive that can be offered for tobacco cessation, which is lower than the fifty percent incentive permissible under the Affordable Care Act;
- Requires that employee health programs that include disability-related inquiries or medical examinations must be voluntary as that term is defined by the regulations;
- Requires that the wellness program must have a reasonable chance of improving the health of employees and preventing disease, and is not overly burdensome or a subterfuge for violating discrimination laws. For example, the proposed regulations suggest that programs that collect information about an employee’s health but do not provide follow-up information to the employee about ways to address those concerns, or do not provide aggregate information to the employer in order to provide a program that could address such a concern among its employees, would not meet this standard.
Based upon the current status of the EEOC’s guidance, there are two things that employers should do at this point. First, if you are in the process of developing possible wellness programs, it may be best to hold off until the final regulations are issued to help inform what that program should involve. Second, if you wish to be heard on the proposed regulations, you should send comments to the EEOC.
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.
