On
May 16th, the Equal Employment Opportunity Commission (EEOC) released final
regulations designed to reconcile contradictory rules for employers related to
employee wellness programs and non-discrimination laws. An EEOC summary of the
final regulations is available here, and you can
find the final rules here and other
commentary and coverage here, here, and here.
The
Americans with Disabilities Act (ADA) and the Genetic Information
Nondiscrimination Act (GINA) include clear restrictions on an employer’s
ability to collect and use employee health information. Just ask the Missouri
employer who found out the hard way that it should not have required applicants
to fill out a three-page health history
form
before it processed applications. The ADA prohibits employers from
“conduct[ing] a medical examination or mak[ing] inquiries… as to whether [an
applicant] is an individual with a disability or as to the nature or severity
of such disability.” In turn, GINA prohibits employers from “request[ing]…
genetic information with respect to an employee [including job applicants] or a
family member,” with certain very limited exceptions. When sued by the EEOC,
the Missouri employer was forced to concede its loss early on when the Missouri
federal court (which is in the same federal circuit as Minnesota) issued a June
8th Order and
Consent Judgment
holding that the employer’s request for applicants to provide their medical
history over the past ten years clearly violated ADA and GINA prohibitions.
On
top of ADA and GINA considerations, the growing cost and complexity of health
care has created additional obligations and some legal contradictions. Under
the Affordable Care Act (ACA), employers are encouraged to offer incentives (or
create potential financial penalties) related to employee participation in
employer-sponsored wellness programs. However, after passage of the ACA, the
EEOC sued several employers for the same wellness programs that the ACA had
encouraged. The EEOC’s issue is that the wellness plans sometimes asked for
medical information in violation of the ADA or GINA or failed to consider
reasonable accommodation obligations under the ADA for disabled emlpoyees. The EEOC’s final regulations are an attempt
to reconcile some of these contradictions, clarifying what is required to ensure
a wellness program is “voluntary” and what information an employer may collect
and use (to make a wellness program useful) without running afoul of GINA and
the ADA.
As
more and more employers focus on wellness due to federal policy and increasing
costs, it is critical for employers to review the EEOC’s final regulations. Employers
need to take care to ensure that their wellness programs are effective without
running afoul of GINA and the ADA’s prohibitions.
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