Category Archives: Wellness Programs

EEOC Issues New Rules for Corporate Wellness Programs

EEOC LOGOOver the last few years the Equal Employment Opportunity Commission has increasingly taken the position that corporate wellness programs — and in particular, the testing they require, the information they collect, and the benefits they provide — can violate discrimination laws. On Monday, the EEOC issued two final rules establishing the standards under which wellness programs will be reviewed.  (See our previous post regarding the proposed rules here.)

One of the rules specifically applies to Title I of the Americans with Disabilities Act (ADA), while the other applies to Title II of the Genetic Information Nondiscrimination Act (GINA).

The Final ADA Rule. The final ADA rule provides that “wellness programs that are part of a group health plan and that ask questions about employees’ health or include medical examinations may offer incentives of up to 30 percent of the total cost of self-only coverage.” The rule requires employers to give participating employees notice that tells them “what information will be collected as part of the wellness program, with whom it will be shared and for what purpose, the limits on disclosure and the way information will be kept confidential.”

The Final GINA Rule. The final GINA rule provides “that the value of the maximum incentive attributable to a spouse’s participation may not exceed 30 percent of the total cost of self-only coverage, the same incentive allowed for the employee… No incentives are allowed in exchange for the current or past health status information of employees’ children or in exchange for specified genetic information … of an employee, an employee’s spouse, and an employee’s children.”

A few notes about the new rules directly from the EEOC:

  • Both rules will be effective beginning on January 1, 2017.
  • Both rules apply to all workplace wellness programs, including programs in which employees or their family members may participate without also enrolling in a particular health plan.
  • Both rules prohibit employers from requiring employees or their family members to agree to the sale, exchange, transfer, or other disclosure of their health information to participate in a wellness program or to receive an incentive.
  • Employers should ensure confidentiality by adopting and communicating clear policies, training employees who handle confidential information, encrypting health information, and providing notification to employees and their family members if breaches occur.

In light of these new rules, we suggest that you carefully review your wellness programs and corresponding financial incentives to ensure compliance. Also, note that under existing laws – even before the introduction of these new rules – you cannot:

  • Require employees to participate in a wellness program;
  • Deny health insurance to employees who do not participate in the program;
  • Take any adverse employment action or retaliate against, interfere with, coerce, or intimidate employees who do not participate in the program; or
  • Deny employees with disabilities reasonable accommodations that allow them to participate in a wellness program and receive any related incentives.

 

 

Webinar – Back to School: Employment Law Update

school-suppliesAs fall approaches and students head back to school, The Employment Lawyers are taking a look back and a look ahead at issues in labor and employment law. Join us for an informational webinar to review developments over the past year and discuss tips to keep your workplace practices current in the coming year.

Thursday, September 17, 2015
12:00 pm – 1:30 pm (CDT)
CLICK HERE TO REGISTER

TOPICS

  • Proposed changes to overtime regulations that will make more employees overtime-eligible
  • New standards in accommodating religious practices and pregnancy
  • The NLRB’s “quickie” election rules and what they mean for union organizing efforts
  • Raising the standard to establish that a worker is properly classified as an independent contractor
  • The EEOC’s new position on wellness programs and disability discrimination
  • Expanding employee retaliation and whistleblower claims
  • New state and local laws that impact minimum wage, paid sick leave and accommodation requirements

And more…

CLE Credit Available | This program has been submitted to the HR Certification Institute for review.

QUESTIONS

Contact Annie Darmofal at 312.476.7626 or adarmofal@lplegal.com

EEOC Issues Proposed Regulations on Employer Wellness Programs

EEOC ImageCan your employees participate in a wellness program through work? Do you offer financial incentives for participating in the program? If so, listen up.

In April, the U.S. Equal Employment Opportunity Commission issued proposed regulations focusing on how the American with Disabilities Act applies to corporate wellness programs. The proposed regulations give some guidance on how to legally use financial incentives to encourage workers to participate in such programs.

Although Title I of the ADA generally prohibits employers from obtaining medical information from employees, it allows employers to give medical examinations to employees and ask about their health if they are part of a voluntary “employee health program.” Before the proposed regulations, the EEOC had not yet determined whether employers could offer financial incentives to encourage employees to participate in such programs or whether offering incentives would make participation involuntary. The new proposed regulations answer these questions — according to the EEOC, employers may offer incentives up to 30% of the cost of the employee-only coverage to employees who participate in a wellness program and/or achieve certain health outcomes.

The proposed regulations (http://www.regulations.gov), in most pertinent part:

  • Define an “employee health program;”
  • Set forth the requirements that must be met for a program to be considered “voluntary;”
  • Detail the 30% of cost incentive limit; and
  • Set forth additional confidentiality requirements of information gathered during participation in wellness programs.

Although these regulations are only proposed and may or may not go into effect as written in the near future, we suggest that you review your wellness programs and corresponding financial incentives in light of the regulations. Please note that under existing laws – even before the introduction of the proposed regulations – you cannot:

  • Require employees to participate in a wellness program;
  • Deny health insurance to employees who do not participate in the program;
  • Take any adverse employment action or retaliate against, interfere with, coerce, or intimidate employees who do not participate in the program; or
  • Deny employees with disabilities reasonable accommodations that allow them to participate in a wellness program and receive any related incentives.

EEOC Lawsuits Shine a Spotlight on Wellness Programs

wellnessThese days, many large employers have some form of wellness program, designed to help their employees address medical and lifestyle issues. Many employers reward employees who participate with discounts on insurance premiums or other incentives. Some “punish” employees who do not participate by, for example, adding surcharges to their premiums.

Two lawsuits filed recently by the Equal Employment Opportunity Commission (EEOC) have raised concerns about wellness programs as they relate to workers’ privacy, voluntary and mandatory participation requirements, and incentive rules under the Americans with Disabilities Act (ADA) that forbids employers from requiring medical exams and making disability-related inquiries.

Last August, the EEOC made history when it filed its first-ever suit alleging that a wellness program violated the ADA. In the suit (EEOC v. Orion Energy Systems, Civil Action 1:14-cv-01019) the EEOC claims Orion Energy Systems, Inc. (a Wisconsin-based company) required employees to take medical exams and allegedly fired a worker when she objected to, and refused to participate in, a wellness program that included a health risk assessment, a medical history questionnaire, and activity on range-of-motion machines. Then, in a lawsuit filed last week against Flambeau, Inc., (also a Wisconsin-based company) (EEOC v. Flambeau, Inc., Civil Action No. 3:13-cv-00638), the EEOC alleged an employee’s insurance coverage was canceled because the company shifted the full cost of his health insurance premium to him after he failed to complete biometric testing and a questionnaire about health risks. You can read more about this suit in the EEOC’s Press Release.

Employers with wellness programs are advised to ensure their programs are voluntary and offer reasonable alternatives for people otherwise unable to participate.