April 2015
By: James B. Sherman,
Esq.
On April 16th the Equal Employment Opportunity
Commission issued proposed amendments to its ADA regulations to address the
growing use of workplace wellness programs. The EEOC will now entertain
comments submitted by any interested parties, before issuing its final rule on
the subject. Therefore, employers
currently using such programs to promote employee health while reducing
insurance costs, as well as anyone contemplating the use of a wellness program
in the future, should familiarize themselves with the proposed rule and take
issue with them through timely submitted comments.
A typical wellness program can include things such as
nutrition classes, gym access, and weight loss or smoking cessation
programs. Some of these programs include
health risk and biometric screening. Additionally,
some employers provide incentives to encourage participation, or for reaching
certain health goals. Although many
employers who provide these programs are mindful of the Affordable Care Act
when designing them, they may overlook other laws that can be implicated. In
particular the Americans with Disabilities Act (ADA) generally prohibits
employers from making disability-related inquiries or requiring medical
examinations. However, there is an
exception for voluntary medical examinations and medical histories that are
part of an employee health program available to employees at the work
site. The proposed regulations assume that
at a certain point employer incentives for participating in a wellness program may
be so substantial that they render an employee’s submission to disability-related
inquiries or medical examinations as part of the program, involuntary and
therefore unlawful under the ADA.
The EEOC states that its proposed regulations attempt to
strike a balance between allowing some employee incentives for participating in
their employer’s wellness program, while limiting the extent of the incentives
so as to prevent what it terms “economic coercion” that could essentially force
employees to disclose medical information involuntarily:
·
Incentives for voluntary participation in a
wellness program that includes disability-related inquiries or medical
examinations are capped at a maximum of 30% of the total cost of employee-only
coverage (as a reward or a penalty).
·
“Voluntary” means that (1) employees are not
required to participate; (2) coverage under any group health plan will not be
denied or limited for non-participation; and (3) no adverse action or
retaliation will be taken.
·
Notice regarding the medical information must be
given to employees.
·
Medical information can only be disclosed to
employers in the aggregate, except as needed to administer the health plan.
This proposed rule will be published officially in the
Federal Register on Monday, April 20, and public comments will be accepted for
60 days, until June 19, 2015.
For a copy of this proposed rule, or for assistance with
assessing any impact these regulations would have on an existing or planned
wellness program, contact Attorney James Sherman, at (952) 746-1700, or email jasherman@wesselssherman.com.
