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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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FMLA Forms – Best Practices

May 8, 2015

Authors

Christy Phanthavong and Chris Rylands

FMLA Forms – Best Practices

May 8, 2015

by: Christy Phanthavong and Chris Rylands

FormsIf you are responsible for administering your company’s Family and Medical Leave Act (“FMLA”) policy, you know that the associated FMLA forms can be both your best friend and your worst nightmare.

On the one hand, proper use of the forms – such as the various Certifications, the Rights & Responsibilities Notice, and the Designation Notice – can provide valuable information to help you evaluate and manage employees’ leave requests. On the other hand, attempting to comply requirements surrounding the forms, not to mention trying to understand the meaning of information received from medical providers – can be an exercise in frustration.

Below are some “best practices” relating to FMLA forms that may aid in the administration of your FMLA policy:

  • FMLA Employee Request Form: Although the Department of Labor (“DOL”) has
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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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