For years (and we do mean years), the EEOC has waffled about whether incentives were permissible in connection with a medical inquiry under a voluntary wellness program. Friday, the EEOC issued its most recent pronouncement on the topic, this time related to incentives for COVID-19 vaccinations.
The ADA prohibits employers from requiring medical examinations or
Since 1996, when Congress passed the Health Insurance Portability and Accountability Act (HIPAA), employers have been struggling with whether and to what extent they could offer incentives to employees to participate in certain “wellness programs.” The Equal Employment Opportunity Commission’s (EEOC) position on these programs has been a significant driver of those struggles, primarily due to concerns about whether such programs are “voluntary.”
On January 7, the EEOC proposed a new approach that may provide employers some certainty, particularly as many employers are wondering about incentives to encourage employees to receive a COVID-19 vaccine. The agency proposed regulations under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) which, for those interested, provides a brief history of wellness programs, and EEOC’s evolving position concerning same.
A (Very) Brief History
In short, the EEOC stated its position on voluntariness in 2000, in its Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act: a wellness program is “voluntary” as long as an employer “neither requires participation nor penalizes employees who do not participate.” See Q/A 22.
During that time and moving forward, however, other federal agencies which regulated group health plans (Health and Human Services, Department of Labor, and Internal Revenue Service) provided a regulatory path for employers to incentivize employees to participate in certain wellness programs. A version of those rules were codified in the Affordable Care Act (referred to herein as the “ACA/HIPAA rules”), evidencing Congress’ intent to permit such incentives, albeit subject to other federal laws, such as ADA and GINA. The EEOC’s initial attempt to harmonize by regulation its position on wellness programs with the ACA/HIPAA rules failed when its regulations addressing incentives were judicially vacated. These new proposed regulations take a different approach.
The Proposed Regulations.
The EEOC proposed two sets of regulations – one under the ADA and one under GINA:
ADA.
Under the ADA proposed rule, a wellness program is a program of health promotion or disease prevention that includes disability-related inquiries or medical examinations. Disability-related inquiries, such as health risk assessments and biometric screenings, generally include a series of questions “likely to elicit information about a disability,” while medical examinations are procedures or tests that seek information about an individual’s physical or mental impairments or health. Programs that do not include disability-related inquiries or medical examinations (e.g., rewarding employees for attending a smoking cessation class) would not be subject to the ADA proposed rule. The rule also would incorporate essentially the same subcategories of wellness programs as under the ACA/HIPAA rules – participatory and health contingent.
Continue Reading Wellness Programs and Water Bottles, the EEOC Proposes New Rules under the ADA and GINA
The rules for employer-sponsored wellness programs continue to be a moving target; most recently, regulations issued by the Equal Employment Opportunity Commission (“EEOC”) intending to address issues under the Americans with Disabilities Act (“ADA”) and the Genetic Information Non-Discrimination Act (“GINA”). Many employers are already well aware of the wellness regulations under the Affordable Care
Since April, employers have been mulling over proposed wellness program regulations issued by the Equal Employment Opportunity Commission (EEOC) to address certain issues under the American with Disabilities Act (ADA). We briefly summarized those proposed rules, and remind readers that there still is time to submit comments to the EEOC in order to seek
Today the Equal Employment Opportunity Commission (EEOC) published long-awaited proposed regulations on wellness programs (Proposed Regs) that are intended to harmonize certain provisions of the Americans with Disabilities Act (ADA) with long-standing rules concerning wellness programs applicable to group health plans under the Health Insurance Portability and Accountability Act (HIPAA), and more recently, the Affordable
We reported in December 2014, that the Equal Employment Opportunity Commission (EEOC) said it was planning to issue proposed regulations (scheduled for February 2015) that would “promot[e] consistency between the ADA and HIPAA, as amended by the ACA,” and “clarify[] that employers who offer wellness programs are free to adopt a certain type of inducement
Since filing multiple litigations against employers concerning their wellness programs, including seeking a temporary restraining order against Honeywell International, the Equal Employment Opportunity Commission (EEOC) has faced a significant amount of push back from many U.S. companies, their CEOs and other organizations.
The reason … programs designed to be compliant with the wellness
The EEOC has challenged a third employer-sponsored wellness program in three months. Filed in federal court in Minnesota on October 27, the EEOC’s petition seeks to enjoin Honeywell International, Inc. from implementing its wellness program. We expect this case will be watched more closely by employers and wellness vendors alike as the program the
In May, the Equal Employment Opportunity Commission (EEOC) announced that it intends to issue proposed regulations addressing health plan-based wellness programs. According to the EEOC’s announcement, the guidance is expected to address the following items:
A prescription for designing successful employer sponsored wellness programs
Continue Reading Wellness Programs: A 2011 Prescription for Participation and Success