After years of confusing and sometimes contradictory signals (described in previous posts here and here), the Equal Employment Opportunity Commission has finally proposed a regulation explaining how employment-based wellness programs can satisfy the Americans with Disabilities Act.
Continue Reading EEOC Proposes New Restrictions for Health Awareness Programs

The Supreme Court held on March 25, 2015 in Young v. UPS that a plaintiff alleging pregnancy discrimination based upon the denial of an accommodation may proceed under the familiar McDonnell Douglas framework generally applied to Title VII discrimination claims. The Court’s decision, which resulted in a remand to the Fourth Circuit, surprised many observers in rejecting the arguments set forth by both parties in the case and instead setting forth a new rule for applying the Pregnancy Discrimination Act (“PDA”).
Continue Reading Supreme Court Makes New Rule in Analyzing Pregnancy Discrimination Act

The Equal Employment Opportunity Commission (“EEOC”) has requested that the United States District Court of Minnesota stop Honeywell from implementing a wellness program that would provide financial incentives for undergoing biometric screenings.  The EEOC is challenging Honeywell’s program on grounds that it would violate the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”).  The EEOC’s request is a surprising development because, as recently as last year, the EEOC stated that it has not taken a position on whether and to what extent providing a financial reward to participate in a wellness program violates the ADA.  In addition, EEOC staff have not previously given any public indication that providing incentives to spouses for participating in a wellness program violates GINA.  Consequently, many employers provide financial rewards to encourage participation in wellness programs up to the limits permitted by the Health Insurance Portability and Accountability Act (“HIPAA”), as amended by the Affordable Care Act (“ACA”).  Employers that offer financial rewards (or impose financial penalties) for participation in wellness programs that request medical information or involve medical examinations should take note of this development.

Update:  On November 3, 2014, the District Court judge denied the EEOC’s request.


Continue Reading EEOC Seeks to Stop Use of Financial Incentives for Wellness Program Participation

The Equal Employment Opportunity Commission held a hearing this week on “Wellness Programs Under Federal Equal Employment Opportunity Laws.”  Amy Moore testified at the hearing on behalf of long-time Covington client The ERISA Industry Committee (“ERIC”), a non-profit association committed to the advancement of the employee retirement, health, and other benefit programs of America’s largest employers.

The hearing focused on the treatment of wellness programs under the Americans With Disabilities Act (“ADA”).  The ADA permits employers to offer voluntary medical examinations or request voluntary medical histories as long as they keep the information confidential and do not use it for discriminatory purposes.  The EEOC issued enforcement guidance in 2000 stating that voluntary wellness programs can qualify for this exception; but the EEOC has never made it clear whether a wellness program is “voluntary” if it offers employees incentives to participate in the program. 
Continue Reading EEOC Holds Hearing on Workplace Wellness Programs

On November 26, 2012, the IRS and Departments of Labor and Health and Human Services published in the Federal Register proposed regulations that would permit group health plans to provide greater incentives for participation in wellness programs.  The proposed regulations include a welcome implementation of statutory changes that were made by the Affordable Care Act, but they leave unanswered important questions about compliance with the Genetic Information Nondiscrimination Act of 2008, as amended (GINA) and the Americans with Disabilities Act, as amended (ADA).  Employers putting wellness programs in place should be mindful of the possibility that a program might comply with the proposed regulations but still violate a requirement of GINA or the ADA.

If finalized, the proposed regulations will be effective for plan years beginning in 2014 or later–the same effective date as the changes to the statute.  Until then, existing regulations that were issued in 2006 continue to apply.  Comments on the proposed regulations are due by January 25, 2012.
Continue Reading Proposed Regulations Will Permit Greater Incentives for Participation in Wellness Programs

Wellness programs have become a popular tool for employers to address ever-increasing employee healthcare costs. However, wellness program designs are limited by the requirements of the Americans with Disabilities Act (ADA), among other laws.  A recent decision by the Eleventh Circuit in Seff v. Broward County may make it easier for employers to provide wellness programs.  In that decision, the court held that Broward County’s wellness program did not violate the ADA, even though employees who refused to participate were subject to financial penalties.  The court concluded that the program was not subject to the ADA’s prohibition on required medical examinations and disability-related inquiries because the wellness program falls within a safe harbor for insured plans.  The safe harbor covers a program that is: 

  • offered under the terms of a bona fide benefit plan,
  • based on underwriting risks, classifying risks, or administering risks, and
  • not inconsistent with state law.  

 
Continue Reading Wellness Program Non-Participation Penalty Does Not Violate ADA, Says Eleventh Circuit