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EEOC Clarifies ADA and GINA Wellness Incentive Rules

October 4, 2016

Authors

Chris Rylands and Katharine Finley

EEOC Clarifies ADA and GINA Wellness Incentive Rules

October 4, 2016

by: Chris Rylands and Katharine Finley

stethoscope-and-dollar-billsWhile the litigation over wellness programs rages on, the EEOC is still marching forward with the implementation of its wellness rules that we wrote about previously.  As most people in the wellness space are aware, the EEOC’s rules under ADA and GINA do not align completely with the HIPAA wellness rules, particularly on the issue of the amount of the incentive.  The ADA and GINA rules apply to all wellness programs, whether participation-only or health contingent, and generally limit the incentive that is available to 30% of the cost of self-only coverage.

One open question under the ADA and GINA rules was how to calculate the incentive when an employer offers multiple tiers of coverage (e.g. Gold, Silver, Bronze) under a health plan. The ADA and GINA rules address the calculation

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EEOC Weighs in on the Impact of the ADA and GINA On Employer-Sponsored Wellness Programs

June 16, 2016

Authors

Lisa Van Fleet and Katharine Finley

EEOC Weighs in on the Impact of the ADA and GINA On Employer-Sponsored Wellness Programs

June 16, 2016

by: Lisa Van Fleet and Katharine Finley

Regulations Compliance Puzzle PiecesOn Monday, May 16 the Equal Employment Opportunity Commission (“EEOC”) issued two final regulations providing guidance on how employer-sponsored wellness programs work with the general antidiscrimination requirements of Title I of the Americans with Disabilities Act (“ADA”) and Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”). These rules were published in the May 17th Federal Register.

This blog post is designed to provide background information on wellness programs and the antidiscrimination protections of the ADA and GINA, to highlight the final regulations and note two action items relating to smoking cessation programs and tiered health plan benefit or cost-sharing structures.

What is a Wellness Program?

The term “wellness program” generally refers to programs intended to promote health and disease prevention and

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EEOC Takes Aim at Erroneous Application of ADA “Safe Harbor” to Wellness Programs

June 3, 2016

Authors

Katharine Finley and Serena Yee

EEOC Takes Aim at Erroneous Application of ADA “Safe Harbor” to Wellness Programs

June 3, 2016

by: Katharine Finley and Serena Yee

Challenges AheadIn its preamble to the final regulations under the Americans with Disabilities Act (“ADA”) published May 17, 2016, which will be the topic of an upcoming blog post, the Equal Employment Opportunity Commission (“EEOC”) once again reiterated its disagreement with the district courts’ application of the bona fide plan safe harbor to the wellness programs in Seff v. Broward County and EEOC v. Flambeau, Inc. (discussed in a prior post).

Seff and Flambeau

In both Seff and Flambeau, plaintiffs brought suit arguing that the wellness programs violated the ADA’s prohibition on mandatory medical examinations and inquiries. Both courts disagreed and held that the wellness programs fell under the safe harbor provision, which in pertinent part state that an insurer or any entity that

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EEOC Faces Another Defeat in its War Against Wellness Programs

January 20, 2016

Authors

Serena Yee

EEOC Faces Another Defeat in its War Against Wellness Programs

January 20, 2016

by: Serena Yee

The U.S. Equal Employment Opportunity Commission (“EEOC”) has steadfastly maintained that any wellness program that is not voluntary violates the Americans With Disabilities Act (“ADA”). In 2014, the Chicago District Office of the EEOC filed lawsuits against Orion Energy Systems, Honeywell International, Inc. and Flambeau, Inc. alleging that their respective wellness programs were not voluntary since employees who refused to complete a health risk assessment and/or biometric screening were financially penalized. In a case of first impression in the Seventh Circuit, the U.S. District Court for the Western District of Wisconsin granted summary judgment on December 31, 2015, in favor of the defendant in EEOC v. Flambeau.

Factual Background

Flambeau implemented a wellness program for 2011 in which employees who completed both a health risk assessment and biometric testing received a $600 credit. The health risk assessment included questions about the employee’s medical history,

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EEOC Finally Lets the Wellness Cat Out of the Bag

April 16, 2015

Authors

Chris Rylands and Lisa Van Fleet

EEOC Finally Lets the Wellness Cat Out of the Bag

April 16, 2015

by: Chris Rylands and Lisa Van Fleet

WellnessOn April 16, the Equal Employment Opportunity Commission (the “EEOC”) finally gave a peek into its thinking about what constitutes a “voluntary” wellness program under the Americans with Disabilities Act (the “ADA”). Recall that, while there are extensive wellness rules under HIPAA and ACA for these types of programs, there was always a gray area with regard to whether these programs were considered “voluntary” for ADA purposes. The EEOC recently started suing companies over their programs and was heavily criticized for doing so without issuing any guidance (aside from a couple of non-binding opinion letters). These proposed regulations are the beginnings of the guidance the critics have requested. While not binding, they are a good starting point for understanding where the EEOC may end up.

Under the proposed rules,

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EEOC Continues its Rampage Against Wellness

October 31, 2014

Authors

Chris Rylands

EEOC Continues its Rampage Against Wellness

October 31, 2014

by: Chris Rylands

This week, the EEOC filed its third, and perhaps most significant, complaint in a wellness-related case.  The complaint alleges that the wellness program, which involved biometric screening and a surcharge for tobacco users, violates the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA). The ADA complaint is that the program requires a medical examination that is not job-related or consistent with business necessity.  The GINA complaint is that the employer is providing a prohibited inducement to receive genetic information. The maximum penalty under the program is $4,000 per year.

While the details of the program are not fully fleshed out in the complaint, this appears to be an escalation of the EEOC’s focus on wellness programs.  While $4,000 is a significant sum of money, this appears to us to be a typical wellness program.

The frustrating aspect of these wellness program lawsuits is

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EEOC Continues to Play Coy on Wellness Programs

March 28, 2013

Authors

Chris Rylands

EEOC Continues to Play Coy on Wellness Programs

March 28, 2013

by: Chris Rylands

Whenever an employer wants to implement a wellness program, we are always compelled to advise them that the Equal Employment Opportunity Commission (EEOC) has yet to give us official guidance on the application of the Americans with Disabilities Act to wellness programs.  The issue under the ADA is that, generally speaking, wellness programs usually involve disability-related inquiries, as that term is defined under the ADA.  As such, to satisfy the ADA’s requirements, in the EEOC’s view the programs have to be voluntary.  A program is voluntary for this purposes as long as the employer neither requires participation, nor penalizes employees who do not participate.

There was a 2009 informal discussion letter that was released and then subsequently revised wherein the EEOC, in the first version, said that compliance with the HIPAA nondiscrimination rules would make a program compliant with the ADA.  The letter was subsequently revised to say that the EEOC

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Wellness is Alive & Well in the 11th Circuit

August 23, 2012

Authors

benefitsbclp

Wellness is Alive & Well in the 11th Circuit

August 23, 2012

by: benefitsbclp

On Monday, the Eleventh Circuit Court of Appeals ruled in Seff v. Broward County that Broward County, Florida’s wellness program qualified for the Americans with Disabilities Act (ADA) bona fide benefit plan safe harbor and therefore was not discriminatory under the ADA.  This is a helpful ruling for employers maintaining or looking to implement wellness programs.

Background.  The ADA generally provides that an employer can only require medical examinations of its employees if they are job-related and consistent with business necessity.  However, the ADA also says that it is not intended to prohibit an employer “from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law.”

The Case. In the case, Broward had a wellness program with biometric screening and an online health

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