In October 2016, the American Association of Retired Persons (AARP) sued the US Equal Employment Opportunity Commission (EEOC) in the US District Court for the District of Columbia seeking an injunction against the latest iteration of wellness program regulations. The final EEOC regulations issued last year offer employers a roadmap for offering employee wellness programs that pass muster as “voluntary” examinations under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA). In response, AARP argued that the EEOC failed to adequately justify the new rules and abused its regulatory power by reversing course on its long-standing position against wellness programs.
Today, the EEOC issued its model notice to be used in conjunction with wellness programs that ask disability related inquiries or require medical examinations. The notice requirement applies prospectively to employer wellness programs as of the first day of the plan year that begins on or after January 1, 2017, for the health plan used to determine the level of incentive permitted under the regulations. An employer’s HIPAA notice of privacy practices may suffice to satisfy the ADA notice requirements if it contains the ADA-required information. However, given the timing requirements for distribution of the HIPAA notice and the fact that the EEOC rules apply to wellness programs outside of the group health plan, a separate ADA notice may be required.
EEOC Releases Final Wellness Program Regulations Related to the Genetic Information Nondiscrimination Act and the Americans with Disabilities Act
The US Equal Employment Opportunity Commission (EEOC) recently released final wellness plan regulations providing guidance on how employer wellness programs may comply with Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). The EEOC made it very clear that compliance with the HIPAA nondiscrimination rules does not necessarily mean that an employer is in compliance with the final wellness program rules under the ADA or GINA.
EEOC to Clarify and Expand Wellness Program Incentives Related to the Genetic Information Nondiscrimination Act
On October, 30, 2015, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule that would amend regulations implementing Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), as they relate to employer wellness programs. Title II of GINA protects employees from employment discrimination based on their genetic information, including the health status of workers’ families.