The U.S. Equal Employment Opportunity Commission (EEOC) has announced it is starting the regulatory process to release its long-awaited rules on the interplay of the Americans with Disabilities Act (ADA) and the Affordable Care Act (ACA) as they affect wellness programs.
According to the EEOC’s March 20 announcement, the proposed rule would amend the regulations implementing the equal employment provisions of the Americans with Disabilities Act to address the interaction between Title I of the ADA, prohibiting employment discrimination, and financial incentives as part of wellness programs offered through group health plans.
The EEOC initiated the process by sending a Notice of Proposed Rulemaking (NPRM) to the Office of Management and Budget (OMB) for clearance. After OMB approves the NPRM, the proposed rule will be published in the Federal Register for a 60-day public notice and comment period. The NPRM cannot be made public prior to its submission for publication in the Federal Register.
Meanwhile, a group of Republican Senators and Representatives, apparently not wanting to wait any longer, on March 3, 2015, introduced legislation (the “Preserving Employee Wellness Programs Act,” H.R. 1189 and S. 620) that would harmonize the wellness program provisions in the Affordable Care Act with potentially conflicting provisions in the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act (GINA). The legislation would protect programs that meet the ACA wellness program requirements, which include the final regulations issued jointly by the Departments of Labor, Health and Human Services, and Treasury, from violating the ADA and GINA.
The proposed legislation also clarifies that the collection of information about the manifested disease or disorder of a family member would not be considered an unlawful acquisition of genetic information with respect to another family member participating in the wellness program and, therefore, would not violate titles I or II of GINA. The measure, if enacted, also would permit employers to establish “a deadline of up to 180 days for employees to request and complete a reasonable alternative standard (or waiver of the otherwise applicable standard).”
Many employers offer a wide range of programs to promote health and prevent disease among their workers. For example, some employers may provide pedometers to encourage employee walking and exercising or pay for gym memberships. EEOC regulations and Interpretive and Enforcement Guidance permit employers to conduct medical examinations, which can include obtaining medical histories, as part of a voluntary wellness program. For years, the EEOC’s position has been that “[a] wellness program is ‘voluntary’ as long as an employer neither requires participation nor penalizes employees who do not participate.” In 2013, the EEOC reiterated that it “has not taken a position on whether and to what extent a reward amounts to a requirement to participate, or whether withholding of the award from non-participants constitutes a penalty, thus rendering the program involuntary.” Since then, however, the Commission has brought several lawsuits against corporate wellness programs alleging that an employer’s program, in violation of the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act, was not “voluntary” due to the “large” and “substantial” penalties to those who chose not to participate.
Further guidance from the Commission is welcomed.