Workplace Wellness Programs Finally Get Some Clarification

After a great deal of confusion for employers and health insurers, the Equal Employment Opportunity Commission (EEOC) has finally agreed to proceed with regulations that would clarify how workplace wellness programs can adhere to the requirements of both the Affordable Care Act (ACA) and the Americans with Disabilities Act (ADA).

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The EEOC voted to send a Notice of Proposed Rulemaking (NPRM) to the federal Office of Management and Budget (OMB) for clearance.

According to the EEOC:

“This proposed rule, which was approved by a bipartisan vote, would amend the regulations implementing the equal employment provisions of the ADA to address the interaction between Title I of the ADA and financial incentives as part of wellness programs offered through group health plans.”

The EEOC is concerned that some workplace wellness programs, which are supposed to be voluntary, violate the ADA or the Genetic Information Nondiscrimination Act (GINA) by discriminating against employees based on the condition of their health.

The ADA prohibits employers from discriminating against employees based on health status, but they are allowed to ask employees details about their health and conduct medical exams as long as the information requested is job-related or in connection with a voluntary wellness program. The ACA encourages employers to put programs in place that give employees incentives (both penalties and rewards) to improve their health by losing weight, reducing stress, or quitting smoking.

Demand for Clarification

The EEOC has received a significant amount of criticism from many U.S. companies, health insurers and other organizations for challenging wellness programs, designed to be compliant with the rules established under the ACA, by claiming that these programs violate the ADA. Actions that have left employers struggling with guidance that has been inconsistent and vague.

Honeywell vs. The Equal Employment Opportunity Commission

Last October the EEOC requested an injunction against Honeywell International Inc., over their health screening policy that requires medical testing for employees and spouses–alleging that their wellness program violates discrimination laws because it imposes monetary fines of up to $4,000 on employees who fail to complete the testing. Honeywell’s wellness program screens workers for blood pressure, cholesterol, blood-sugar levels, waist circumference and nicotine.

Honeywell maintains the policy promotes employee wellbeing and reduces healthcare premiums for healthy employees.

“We don’t believe it’s fair to the employees who do work to lead healthier lifestyles to subsidize the healthcare premiums for those who do not.”

The District Judge stated, “What is better public policy and who is likely to succeed are not measures this court is prepared to decide…There are a number of fascinating issues for debate at a later time.” The case has been closed.

Flambeau and Orion Energy were also tagged for wellness programs that include biometric screenings.

What Happens Next?

Once the OMB approves the proposed rule, it will be published in the Federal Register for a 60-day public notice and comment period. Once the comment period ends, the agency reviews public comments received and may revise the rule.

The agency then goes through its final internal review process. Once the final rule has been published, an agency usually must wait at least 30 days before implementing it.

The Role of the EEOC

The EEOC enforces federal antidiscrimination laws like the ADA, the Equal Employment Opportunity Act, and GINA. They investigate charges of discrimination against employers and have the authority to file lawsuits “to protect the rights of individuals and the interests of the public.”

Notice of Proposed Rulemaking (NPRM)

A NPRM is a public notice issued by law when one of the independent agencies of the United States government wishes to add, remove, or change a rule or regulation as part of the rulemaking process.

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