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Imagine you are in-house counsel for a large company and its executives have come to you for advice on the current corporate employee rage: wellness programs. What do you tell them? How do you best counsel your client?
Wellness programs are a relatively new craze as far as corporate perks are concerned, but some of the laws that control are old and settled. Here are a few things you should keep in mind.
Federal Rules and Guidelines
Recently, the EEOC issued its final rule to amend the Regulations and the concomitant Appendix implementing Title I of the ADA with respect to wellness programs. Under the ADA rules, company programs that require inquiries into an employee's health and/or disabilities must be voluntary on the employee's part.
For the purposes of the act, "voluntary" has a very specific and detailed meaning outlined in ADA rules. The main thrust is that an employee cannot be compelled to participate in a company wellness program and that no adverse action can be taken against a person for his or her refusal to participate. This, by the way, also includes those persons who are not yet employees of the company. In-house counsel should also ensure that any proposed plan conforms to the strict guidelines under GINA.
The problem is that updates in the law with regards to self-coverage in the EEOC rules are in conflict with incentives caps placed into the wellness plan rules by the DHHS. The rules are mercilessly complex and full of pitfalls. For example, the current rules allow an employer to incent employees based on the cost of the health plan the employee selects -- no matter who is covered in the plan. And under GINA, incentives are allowable for the employee's spouse's participation in the program. But what about the children? Or some of the spouse's past genetic information? No such incentives may be utilized. Confused?
In-house counsel will want to get employee wellness plans compliant before the new rules become effective at the beginning of next year. Employer questions should be checked to ensure they do not run afoul of the rules. Notice requirements outlined in the EEOC guidelines should also be respected. Take care to also ensure that the incentives offered in the company wellness plans are compliant and consistent with the latest in the regulations. Diligent review of the EEOC's final rule is called for.