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EEOC Clears up the Direction of 'Wellness' Programs

By Jonathan R. Tung, Esq. on May 24, 2016 | Last updated on March 21, 2019

The EEOC cleared up some confusion surrounding the interaction of corporate wellness programs of other federal laws like GINA and the Americans with Disabilities Act by issuing rules concerning voluntariness. And the results have some upset.

In-house lawyers for most companies may be able to slip by without making major changes to legal compliance this time around, as the rules appear to have changed little from the proposed rules of last year.

Preemptive Discrimination

Under the current federal legislation of GINA and the ADA, employers are generally prohibited from using an employee's genetic information (or that of their family members, including their spouses) in the pricing or denial of benefits unless such information is voluntarily given by the employees through a wellness program.

Under the EEOC publication, corporate wellness programs would keep their voluntary status so long as an employer's incentives or discounts do not exceed more than 30 percent of an employee's single-person coverage. Since this incentive limit applies separately to employees and their spouses, this means that an employee-spouse pair could together receive 60 percent of the cost of self-only coverage if both participate.

ADA and Wellness Popularity

Corporate wellness programs have picked up in popularity ever since the passage of the ADA, but there has been some disagreement if they live up to the promise of lowering costs and providing better health outcomes to employees.

Discounts for Those Who Talk

Still others have objected on a point of principle. It has been argued that the voluntariness of corporate wellness programs is illusory since many organizations handout significant incentives for "voluntarily" joining wellness programs -- sometimes even in the way of penalties. Once private genetic information is handed out, what is to stop discrimination against persons who "voluntarily" disclosed material information? At that point, in-house attorneys will have to contend with a whole new host of legal issues. Sometimes, however, in an uncertain climate, the best thing to do is wait and see.

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