In our June 2, 2016, article summarizing final wellness program regulations issued by the EEOC under Title I of the Americans with Disabilities Act (“ADA”), we noted the EEOC’s promise to post on its website a sample notice by which employers could satisfy the ADA’s notification requirements. The EEOC has today posted such a sample notice, along with a series of FAQs shedding further light on the notification requirement. Although employers are not required to use this sample notice, they should make sure that their notice covers all the points addressed in the EEOC sample.
Final regulations issued by the Equal Employment Opportunity Commission (“EEOC”) under both the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”) will require modifications to many employee wellness programs. These modifications may include the deletion of certain questions from health risk assessments, additional employee notification requirements, and a reduction in the incentives used to discourage tobacco usage. Although certain aspects of these regulations will not apply until the first day of the 2017 plan year, others are already in effect.
Following the lead of Seff v. Broward County, another federal court has disagreed with the EEOC on the scope of an ADA exemption for employee benefit plans. In EEOC v. Flambeau, Inc., the court held that this benefit-plan “safe harbor” could be used to justify a wellness program that included both a health risk assessment and a biometric screening.
The EEOC has issued proposed regulations providing guidance on the extent to which the ADA permits employers to offer incentives to employees to promote participation in wellness programs that are employee health programs. The new guidance is similar, but not identical, to the rules governing incentives for health-contingent wellness programs under HIPAA. Employers should review their wellness programs to ensure compliance with both laws.
Recently proposed IRS regulations provide guidance to employers wanting to know whether they may consider their HSA contributions, HRA credits, or wellness program incentives when testing their health plans for compliance with the “affordability” and “minimum value” requirements of the Affordable Care Act’s play-or-pay provisions. The chart accompanying this article summarizes this guidance.
One of the many aspects of the Affordable Care Act (“ACA”) is an emphasis on wellness. The goal is to encourage employers to implement wellness programs for their employees (and in some cases, their dependents), thereby slowing the growth in health care costs. Late last month, the agencies charged with implementing the ACA proposed a new round of regulations governing such programs. Although these latest regulations generally reaffirm the approach taken in regulations proposed in 2006, they also modify the 20% cap on wellness program rewards, offer further guidance on the “reasonableness” of any alternative standard for obtaining a reward, and clarify both the annual-eligibility and disclosure obligations.
In a somewhat surprising decision, a Florida federal court has suggested that even monetary penalties for non-participation in employer-sponsored wellness programs may be permissible under the Americans with Disabilities Act.
In a closely watched case pending in a Massachusetts federal court, Scotts LawnService has successfully defended its policy of refusing to hire anyone who smokes, even if they do so on their own time. The employer’s anti-smoking policy was just one component of a comprehensive wellness initiative. Employers across the country who are seeking judicial guidelines on the extent to which they can stretch wellness programs may find some comfort in this ruling, but they would be well advised not to place too much emphasis on it.