Continuing his posts on wellness programs, my colleague Marc Herman fills us in on what’s the latest.
I 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.
According to the regulation, a voluntary medical examination (i.e., a lawfully incentivized wellness program) means that an employer:
- Does not offer an incentive that, in monetary terms, exceeds 30% of the total cost of self-only coverage for an employee;
- Does not deny an employee access to a health plan on the basis that the employee declined participation in a wellness program; and
- 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.