If you’re frustrated by the EEOC’s recent lawsuits against wellness programs, and are confused about what a legal wellness incentive is nowadays, you’ll probably like this:
The Preserving Employee Wellness Programs Act was just introduced in both the House and Senate. It’s a short bill that aims to clear up the confusion sparked by the EEOC around what’s an acceptable wellness program incentive and what isn’t.
As you may recall, the EEOC sued Honeywell International Inc. late last year, claiming the company’s wellness program biometric screenings violated the ADA and GINA because:
- the incentives to participate in the screenings were so extreme — they could cost non-participating employees up to $4,000 — that they rendered the wellness program involuntary (the alleged ADA violation), and
- the screenings illegally tied incentives to the collection of family members’ medical history (the alleged GINA violation).
The lawsuit against Honeywell came on the heels of two other lawsuits in which the EEOC charged two other employers with similar violations of the ADA.
The ADA says medical examinations — like the biometric screenings Honeywell and others wanted employees to participate in under their wellness programs — are only legal if they are voluntary or job-related and consistent with business necessity.
The EEOC said the employers’ penalties for non-participation were so steep, they rendered the examinations involuntary.
What employers, Congress took issue with
Now here’s the rub: Employers and various members of Congress believe the EEOC has overstepped it’s bounds issuing these wellness lawsuits because:
- the agency never issued any regulations specifying when a wellness incentive or penalty would be so steep as to render a program involuntary, and
- the Affordable Care Act (ACA) has said that employers can offer wellness incentives/penalties as long as they don’t exceed 30% of the value of an individual’s insurance premiums (50% if the incentives are tied to smoking cessation).
What the new bill would do
The new bill, if passed, would set the record straight once and for all.
Quite simply, it says that wellness programs would be in compliance with the ADA if they’re in compliance with the ACA.
The bill also addresses GINA violations by saying:
“the collection of information about the manifested disease or disorder of a family member shall not be considered an unlawful acquisition of genetic information with respect to another family member participating in workplace wellness programs, or programs of health promotion or disease prevention offered by an employer or in conjunction with an employer sponsored health plan … and shall not violate titles I or title II of the Genetic Information Nondiscrimination Act of 2008.”
In other words, collecting medical info on employees’ family members who’ll participate in a company wellness program — whether the incentives are tied to the collection of this info or not — won’t violate GINA.