As Employers Await Wellness Program Regulations From The EEOC, Congress Has Acted
We reported in December 2014, that the Equal Employment Opportunity Commission (EEOC) said it was planning to issue proposed regulations (scheduled for February 2015) that would “promot[e] consistency between the ADA and HIPAA, as amended by the ACA,” and “clarify that employers who offer wellness programs are free to adopt a certain type of inducement without violating GINA.” None have been issued to date.
However, a group of Republican Senators and Representatives apparently do not want to wait any longer. On March 3, 2015, this group introduced legislation (the, Preserving Employee Wellness Programs Act) that would harmonize the wellness program provisions in the Affordable Care Act with potentially conflicting provisions in the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). More specifically, this legislation would protect programs from violating the ADA and GINA if those programs meet the ACA wellness program requirements, which would include the final regulations jointly issued by the Departments of Labor, Health and Human Services and Treasury.
Notwithstanding any other provision of law, workplace wellness…offered by an employer or in conjunction with an employer-sponsored health plan, described in section 2705(j) of the Public Health Service Act (42 U.S.C. 300gg-4(j)), shall not violate the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) or titles I or II of the Genetic Information Non-discrimination Act of 2008 (Public Law 110-233) because such program provides any amount or type of reward…to program participants if such program complies with such section 2705(j) (or any regulations promulgated with respect to such section by the Secretary of Labor, the Secretary of Health and Human Services, and the Secretary of the Treasury).
(Emphasis added.) Some of these potential conflicts were raised in recent EEOC litigations discussed here although those cases have not been resolved at this point.
The proposed legislation also would clarify 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 title II of GINA. The measure, if enacted, also would specifically 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).”
It is unclear whether this legislation will be enacted anytime soon or if at all, and employers remain unclear about the design of some aspects of their programs. Plan designs that are permissible under the ACA give employers pause because, based on some of the statements and actions of the EEOC, those plan designs are potentially questionable under the ADA or GINA. Further guidance on these issues is welcomed.