The Equal Employment Opportunity Commission (EEOC) issued final rules describing their interpretation of what employers are able to do to encourage employee participation in employer-sponsored wellness programs, while still complying with the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). However, the new rules come during legal battles about whether the commission's interpretation is even correct.
In an interview with Cook County Record, Mark Casciari, a partner with Seyfarth Shaw LLP said “The EEOC now has issued wellness regulations under the ADA and GINA, but they're being challenged in court.” Casciari went on to point out that "Barbara Crabb [the district court judge] said the EEOC's reading of the Americans with Disabilities Act is wrong and not consistent with the statute, which undermines the regulations.”
At a time critical time in history when health insurance has risen drastically, and many Americans have adopted unhealthy lifestyles creating additional health risks, employers are looking for answers. “There are a lot of employers who think wellness is good and that health risk assessments are good, that biometric screening is good, and that people should know about their risks so they can change their behavior and reduce health expenses,” Cascari said. “If you take away wellness incentives, which the EEOC would want you to do in substantial part, it may be counter-productive in promoting wellness.”
Historically, wellness programs comply with regulations under the Affordable Care Act (ACA) and the Health Insurance Portability and Accountability Act (HIPAA). Cascari noted that following those already settled regulations is important for employers to protect themselves. Cascari stated, “When it comes to the EEOC, the question is whether any litigation from the EEOC about non-compliance with the regulations will continue to be unsuccessful. If the employer wants to reduce all risk of EEOC litigation, it could comply with the EEOC regulations. On the other hand, the EEOC regulations could be illegal, so you may unnecessarily be complying.”