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“Well” Look What We Have Here: EEOC Regulations on Wellness Programs (Part II)

Posted in CHRO & EEOC, Highlight, Human Resources (HR) Compliance, Laws and Regulations, Manager & HR Pro’s Resource Center

Continuing his posts on wellness programs, my colleague Marc Herman fills us in on what’s the latest.  

hermanI return today with the second part of a two-part post on wellness programs.

Reference to my prior post is not to be braggadocious, but to remind you that both posts ought be read in tandem.  Shameless, I know.

As I mentioned last time, the EEOC has finally published its long-awaited regulation that attempts to clarify the meaning of a voluntary medical examination.

Why long awaited? I hear you ask.

Well, if you recall, over the past couple of years, the EEOC has embarked on a slightly manic litigation spree against wellness programs.

In its typical altruistic self, the EEOC set-out to remind us that involuntary medical examinations are largely prohibited under the ADA.  I call this the No Exam Rule.

nurseNow, let’s get to the regulation itself.

According to the regulation, a voluntary medical examination (i.e., a lawfully incentivized wellness program) means that an employer:

  1. Does not offer an incentive that, in monetary terms, exceeds 30% of the total cost of self-only coverage for an employee;
  2. Does not deny an employee access to a health plan on the basis that the employee declined participation in a wellness program; and
  3. Does not retaliate against those employees that otherwise choose not to participate.

My self-proclaimed cynicism aside – please, I am English (Editor’s note: Too true!) – the above rules set forth a pragmatic, and dare I say workable, framework.  Employers that are considering such programs or that already have such programs, should be mindful of the regulations.

One thing to keep in mind — the regulation applies prospectively.  Thus, it will apply only to wellness programs that begin on or after January 1, 2017. With that said, the shake-up (or shake-down) due to take place in Washington D.C. very soon could relegate this new regulation to the history books.

Watch this space. Because I have a feeling we haven’t heard the last about wellness programs regulations.