EEOC News in 2017

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EEOC Wellness Program Notice Requirements for 2017

If you are not doing so already, be aware that as of January 1, 2017, employers offering voluntary wellness programs must provide employees a notice in accordance with final regulations issued by the EEOC in May 2016.

Wellness programs are generally health promotion and disease prevention programs and activities offered to employees as part of an employer-sponsored group health plan or separately as a benefit of employment.

A wellness program must meet four requirements in order to be considered voluntary. This is important because if the program is not considered voluntary, an employer is violating the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). One of the four requirements is satisfied by issuing proper notice to employees.

The wellness program may require employees to provide health information or undergo screenings for risk factors. This raises the issue of confidentiality. The EEOC provided a roadmap to employers when constructing notices so that it satisfies one requirement for the programs to be classified as voluntary.

The EEOC issued guidance in the form of Q&A’s and they advise that if an employer’s current notice informs an employee what information will be collected through the program, who will receive the information, how the information will be used and how it will be kept confidential, then a new wellness program notice is not needed. The final regulations provide a sample notice and emphasize that employees must receive the notice before providing any health information and with enough lead time to decide whether to participate in the employer’s wellness program.

Fiscal Year 2016 Enforcement Data – released

The EEOC released its fiscal year 2016 enforcement data in mid-January and complete data can be found at:

https://www.eeoc.gov/eeoc/newsroom/release/1-18-17a.cfm.

Retaliation remained the #1 charge filed by an employee. It has earned that ranking every year since 2010.

Top 5 Discrimination Charges Filed:

  1. Retaliation: 42,018 charges (45.9 % of all charges filed)
  2. Race: 32,309 (35.3 %)
  3. Disability: 28,073 (30.7 %)
  4. Sex: 26,934 (29.4 %)
  5. Age: 20,857 (22.8 %)

(The percentages add up to more than 100% because many charges involve multiple bases.)

Notably, for 2016 the EEOC included detailed information about LGBT charges in its enforcement data summary. EEOC resolved 1,650 charges and recovered $4.4 million for LGBT individuals who filed sex discrimination charges in 2016.

Additionally, EEOC provided that the agency filed 86 lawsuits alleging discrimination in fiscal year 2016, including 55 individual suits and 31 suits involving multiple-victims of discrimination.

EEOC Poised to Issue Enforcement Guidance on Harassment in 2017

In January, the EEOC announced that it was seeking public input on proposed Enforcement Guidance and released the 75-page draft Guidance to the public. The EEOC originally set the deadline for input at February 9, 2017, but on February 3 extended the deadline until March 21, 2017. The Guidance is comprised of six major sections including: “Covered Bases and Causation,” “Harassment Resulting in Discrimination with Respect to a Term, Condition, or Privilege of Employment,” and “Liability.” Additionally, the Guidance provides employers with a “best practices” section with suggestions for policies and training. The document is intended to be an all-encompassing harassment guidance document and will supersede five existing enforcement documents.

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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