Back in June, we reported on new EEOC rules, which take effect January 1, 2017, that permit and encourage wellness programs in the workplace. EEOC described how the new rules would comply with GINA and the ADA, since participation in these programs often involves the disclosure of medical information that would typically be classified as confidential. Both the ADA and GINA specifically allow employers to perform health evaluations and make health-related inquires, so long as such information is collected as a part of a voluntary wellness program. Employers may also “offer an inducement to an employee whose spouse provides information about the spouse’s manifestation of disease or disorder as part of a health risk assessment.” 29 C.F.R. § 1635.8(b)(2)(iii)
These EEOC rules encourage such wellness programs by allowing employers the ability to offer incentives of up to 30 percent of the total cost of their cheapest individual health insurance plan. As Ancel Glink attorney, Bob McCabe, reported in June, “the idea behind these incentive limits was to set the level such that it would not be so high as to be considered coercive and destroy the voluntary nature of plan participation. After all, if the employer offered 75 percent of the plan cost as an incentive for participation, who could afford not to participate?” Bob also noted that “even with the new regulation, employee wellness programs are complicated. If not properly administered, they can lead to discrimination claims under the ADA.”
As expected, a lawsuit challenging the rules has been filed. This past Monday, AARP, formerly the American Association of Retired Persons, filed suit against EEOC, claiming that the new rules “allow employers to impose heavy financial penalties on employees who do not participate in employee wellness programs. On average, these penalties would double or even triple those employees’ individual health insurance costs.” The complaint argues that these wellness programs are supposed to be “voluntary,” in which an employee’s disclosure of medical information should neither be required nor encouraged through financial incentives. AARP further claims that such rules will pressure employees to disclose confidential medical information, something that both the ADA and GINA were enacted to protect. The complaint argues, "Congress enacted these protections to prevent employers from discriminating and to combat stigma in the workplace against individuals with disabilities."
To read AARP’s complaint, click here. Employers are encouraged to keep an eye on this case as it develops.
