EEOC Grapples with Proposed Rule Comments on Wellness Program; Additional Guidance Expected Soon

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As we previously reported below, the Equal Employment Opportunity Commission (EEOC) released Proposed Rules on April 16, 2015 to provide guidance under the Americans with Disabilities Act (ADA) on permissible employer incentives for employee participation in wellness programs.  Comments on the proposed rules were due on or before June 19, 2015.  The EEOC received approximately 340 comments, which can be viewed here.

At an American Bar Association Joint Committee on Employee Benefits conference on October 19, 2015, the EEOC informally stated that the agency is currently reviewing the substantive comments received, including the many comments on the EEOC’s “controversial” position that employers can’t limit coverage under a health plan or deny access to particular benefit packages within a group health plan for employees who don’t participate in the employer’s wellness program.  The EEOC has also been discussing potential regulation with the Department of Labor, particularly regarding how to determine which wellness programs are outside of group health plans.  Another provision being reviewed for new guidance is the requirement that employers who offer wellness programs give employees a notice that clearly explains what medical information will be obtained, who will receive the medical information, how the medical information will be used, and how the employer will maintain the confidentiality of that information.  Many commenters stated that the notice is duplicative of existing notices required under the Health Information Portability and Accountability Act (HIPAA), which applies to group health plans.  The EEOC is trying to determine when notice should be required and whether existing notices may be sufficient under the ADA.  In addition, the EEOC expects to issue a Notice of Proposed Rulemaking under the Genetic Information Nondiscrimination Act (GINA) addressing spousal participation in wellness programs.  Employers should continue to review their current programs in light of current EEOC guidance and remain on alert for new EEOC proposed and final rules.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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