Senator Lamar Alexander (R-Tenn.) is following through on his warning that if the Equal Employment Opportunity Commission (EEOC) didn’t issue regulations, he would introduce his own legislation to clarify requirements for employee wellness programs as they relate to the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).
On March 2, 2015, Sen. Alexander, along with Representative John Kline (R-Minn.) and a number of Republican co-sponsors, introduced the Preserving Employee Wellness Programs Act (H.R. 1189, S. 620).The bill provides certain protections for employee wellness programs that comply with the Health Insurance Portability and Accountability Act’s (HIPAA) wellness program nondiscrimination regulations as well as the final Affordable Care Act (ACA) regulations that were released in June 2013. (Please click to read the bill.)
Impetus for the bill was uncertainty surrounding ACA-compliant wellness programs in light of a recent motion for a temporary restraining order and preliminary injunction filed by the EEOC involving Honeywell International Inc. (See our Alert on this topic.)
The district court denied the EEOC’s request. However, damage has already been done, with some employers now wondering if they might become targets of the EEOC even though they designed their programs according to ACA regulations. Creating further confusion, the EEOC has offered no insight on the actual reward amounts they deem appropriate for employer-sponsored wellness initiatives.
The EEOC’s most public opposition is coming from its own regional office in Chicago. It appears staffers in this EEOC office concede that Honeywell acted within ACA and HIPAA regulations. Unfortunately, however, the EEOC believes the ADA trumps both the ACA regulations and HIPAA rules. And it’s the ADA the EEOC cited in its suit against Honeywell.
The EEOC and Department of Labor (DOL) were to have met in February to discuss the issue, but neither group has acknowledged this has occurred. For those employers who were looking to regulatory clarity for their health outcomes-contingent wellness programs, this lack of action has left many in limbo.
That’s unfortunate because at Lockton, our experience has taught us that wellness programs must include a certain level of employee accountability, along with a meaningful reward system, to drive actual behavior change. Without those behavioral changes, an organization is unlikely to achieve sustainable risk reduction.
It’s possible this bill may be an attempt to provide additional clarification without the EEOC losing face for the actions of one regional office. Regardless, this bill offers hope to employers because it will ensure they have the opportunity, without fear of government censure, to develop and implement health-contingent wellness programs that are in accordance with HIPAA, the ACA, GINA and the ADA.