The Equal Employment Opportunity Commission (“EEOC”) started off the New Year by rescinding its regulations for employers’ wellness plans. What does this mean for you, as an employer?
Here is some relevant background on wellness regulations.
The EEOC’s wellness regulations applied only to employers that either offer or plan to offer a “wellness program,” which refers to health and disease prevention programs including nutrition classes, weight loss and smoking cessation programs, and onsite exercise facilities. Under the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”), in connection with wellness programs, employees’ disclosure of ADA and GINA-protected information must be “voluntary.” (The ADA protects employees’ medical information. GINA protects genetic information.)
In May 2016, the EEOC issued regulations under the ADA and GINA, defining the meaning of “voluntary.” According to the EEOC’s regulations, employers could implement incentives (penalties or rewards) of up to 30 percent of the cost of self-only coverage to encourage employees to disclose ADA and/or GINA-protected information. For example, to get employees to complete a physical, an employer could offer a monetary contribution to employees’ health savings account of no more than up to 30 percent of the cost of self-only coverage.
The AARP challenged the incentive limits, arguing that the EEOC did not provide sufficient reasons to limit incentives to 30 percent. On August 22, 2017, the District Court for the District of Columbia, agreeing with the AAP, issued an order vacating the EEOC’s incentive limits.
Effective January 1, 2019, the EEOC rescinded its regulations defining “voluntary” participation under both the ADA and GINA. At this time, there are no replacement regulations.
What should employers do?
At this time, we have no clear definition of “voluntary.” So, employers must exercise an abundance of caution in encouraging employees to release ADA or GINA protected information in connection with employers’ wellness plans. Here are three tips to help you get through the current state of limbo.
- Have a third-party provider, such as your health insurance broker, manage incentives that are based on the completion of medical surveys and examinations.
- Any programs that are not managed by a third-party provider should focus exclusively on participation and education, such as fitness classes and lunch time walking groups. Medical or genetic information should not be requested for participation in these programs.
- Develop and implement a wellness policy so that employees understand the parameters of your wellness program. A wellness policy would be useful in proving to the EEOC that your program was fully compliant and consistently implemented as to all employees.
We will keep you posted!
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.
