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Nonstop Blog:

Proposed New Rules from the EEOC Provide Clarification for Wellness Programs

On April 20, 2015, the Equal Employment Opportunity Commission (EEOC) proposed new rules around employee wellness programs, especially as they relate to the Americans with Disabilities Act (ADA).  Specifically the proposed rules provide further clarification around what constitutes a “voluntary” program, how incentives can be used, confidentiality of medical information, and accommodations for those employees who are unable to participate in an incentivized wellness program.

Many companies currently offer voluntary wellness programs that may require participants to undergo health risk assessments that look at personal medical information – in exchange for desired incentives such as financial rewards or additional time-off.  However, the ADA “restricts the medical information employers may obtain from applicants and employees and makes it illegal to discriminate against individuals based on disability.”  The current rules make it difficult to render a program voluntary when the incentives (or penalizations for not participating) can potentially be so high that employees feel financially at-risk for not participating.

As such, the EEOC has proposed the following new rules, which are up for comment through June 19, 2015:

·      Voluntary programs cannot interfere with ADA rights of employees, and those choosing not to participate cannot be denied health coverage, given reduced benefits, or disciplined

·      Incentive costs per employee cannot exceed 30% of the total employee-only coverage

·      Reasonable accommodations for incentivized programs must be provided to employees with disabilities, allowing said employees to fully participate and earn the same rewards as other participants

·      All medical information obtained through voluntary wellness programs is delivered in aggregate form to employers to protect the identity of participants, in accordance with the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule

For a detailed look at the proposed changes and what the EEOC is seeking comments on, please visithttps://www.federalregister.gov/articles/2015/04/20/2015-08827/amendments-to-regulations-under-the-americans-with-disabilities-act

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