Wellness Programs and Liability: What Could Proposed EEOC Rules Mean for Corporate America?

By Brandes, Heide | THE JOURNAL RECORD, March 2, 2016 | Go to article overview

Wellness Programs and Liability: What Could Proposed EEOC Rules Mean for Corporate America?


Brandes, Heide, THE JOURNAL RECORD


Imagine this scenario.

You are required to submit genetic information and background health information in order to participate in a group health plan at the office. Your parents both have had cancer and heart disease.

Suddenly, the employer is looking at you. Do you have those same health risks? Did you inherit those illnesses? Are you too much of a health risk to participate in your employer's health plan?

Two new proposed rules by the U.S. Equal Employment Opportunity Commission are trying to clarify just what employers can require as far as mandatory information about health in regard to company wellness programs.

The U.S. Equal Employment Opportunity Commission published a notice of proposed rule-making in April 2015, describing how Title I of the Americans with Disabilities Act, or ADA, applies to employer wellness programs that are part of group health plans.

A second proposal, released in October, amends the regulations of the Genetic Information Nondiscrimination Act, or GINA, as they relate to employer wellness programs that are part of group health plans. The proposed rule says employers that offer wellness programs may provide limited financial and other incentives in exchange for an employee's spouse providing information about his or her current or past health status.

"The EEOC is attempting to try to provide guidance to employers about how they can operate their wellness programs while ensuring that they aren't discriminating against disabilities or not inquiring about personal health in a way that violates federal law or places an employee in a position where their rights are violated," said Adam Childers, an attorney with Crowe & Dunlevy in Oklahoma City.

The EEOC's proposed rules provide guidance to both employers and employees about how wellness programs offered can be in compliance with the ADA and GINA.

So, what do these two proposals mean for companies?

"Under both of these proposed regulations, an employer may not use the information gathered from the wellness program to discriminate against an employee," said Byrona J. Maule, shareholder and director at Phillips Murrah PC in Oklahoma City.

"So if an employer uses the information to discriminate against an employee, the employer could be liable for back wages, benefits, compensatory damages, front pay, reinstatement, attorneys' fees and costs."

According to Childers, most businesses have two types of wellness programs. One is a voluntary program that focuses on better health, weight loss, smoking cessation or fitness. The second is contingent, meaning that in order to get health insurance, employees have to make available background health information or biometrics.

"To even gain coverage, the employee has to provide information on their health or genetic background, and that's where the GINA act comes into play," said Childers.

"I believe that these two rules are trying to put employers on notice on how much they can ask or have mandatory when it's a wellness program, especially contingent wellness programs for health insurance."

Many employers that provide health insurance also offer workplace wellness programs intended to encourage healthier lifestyles or prevent disease, and these programs can use tools like health risk assessments and biometric screenings to determine risk factors.

Many corporate wellness programs also give financial and other incentives to employees who participate.

Under the new proposal, the ADA will allow employers to issue questionnaires about employee health or encourage them to undergo medical examinations, but only if it is voluntary and part of an employee health program.

Prior to the proposed rule, the EEOC had not clarified whether employers may offer incentives to encourage employees to participate in such programs or whether offering incentives would make participation involuntary, said Christine Saah Nazar, spokeswoman for the U. …

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