Finally! EEOC issues guidance on what wellness programs can and can’t do
Just when HR pros were starting to lose hope the EEOC would ever issue any guidance and rules on the impact ADA and GINA have on wellness programs, the agency made a major announcement.
After months of inaction, the EEOC just sent a Notice of Proposed Rulemaking (NPRM) about wellness programs to the White House Office of Management and Budget (OMB) to get an OK.
This marks the first action step in the official regulatory process.
Ire of the industry
Following a string of high profile wellness plan lawsuits filed by the EEOC, the benefits industry and several prominent business associations have had some harsh criticism for the agency.
The lawsuits, which HR Benefits Alert had covered in greater detail previously, each center around companies with “involuntary” wellness programs that the EEOC claims violates the ADA or GINA or both.
Specifically, in each of these lawsuits, the agency claims the wellness programs aren’t truly voluntary either because of “dire consequences” the program imposes on workers who choose not to participate or because of health assessments which are not “job-related and consistent with business necessity” (because they were preventive in nature) and violate the ADA’s rules regarding employee medical exams and inquiries.
The major complaint about the lawsuits from the benefits world: How can the EEOC possibly sue employers for involuntary wellness programs when there isn’t any official guidance on what the agency considers involuntary?
A chance to weigh in
According to the press release, the EEOC’s proposed rule would amend the regs that apply to the equal employment provisions of the ADA — and address the interaction between Title I of the ADA and financial incentives that are part of wellness plans offered through firms’ group health plans.
If the OMB approves the proposed rule, it will be published in the Federal Register for a 60-day public notice and comment period.
That means HR pros will have a chance to weigh in on the EEOC’s rule.
This EEOC announcement comes on the heels of new legislation introduced to confirm employers’ legal rights to offer financial incentives to staffers who voluntarily complete wellness programs or make healthy lifestyle changes.
So even though we still have a while until the EEOC’s final rule is published, at least employers have a concrete idea of what’s going to happen and when.
