In October 2016, AARP sued the Equal Employment Opportunity Commission (“EEOC”) under the Administrative Procedures Act (“APA”) arguing that there was no explanation for the shift in the EEOC’s position relating to what makes participation in a wellness program “voluntary”. Originally, the EEOC argued that in order for a wellness program to be “voluntary,” employers could not condition the … Continue Reading
On March 2, 2017, in an attempt to clear the murky waters surrounding wellness programs, Rep. Virginia Foxx, chairwoman of the House Committee on Education and the Workforce, introduced the Preserving Employee Wellness Programs Act (the “Act’) (H.R. 1313). In an effort to protect wellness plans, the Act reaffirms existing law which permits employee wellness … Continue Reading
The days of referring to the EEOC’s guidance on wellness incentives under the ADA and GINA as “long-awaited” may be coming to an end. The EEOC announced that it has sent a Notice of Proposed Rulemaking (NPRM) on this issue to the Office of Management and Budget (OMB) for clearance. The NPRM is not available … Continue Reading
March is here. The EEOC’s perspective on wellness program incentives is not. Yet again. In its Fall 2014 regulatory agenda, the EEOC stated it would be issuing in February 2015 amended regulations concerning the size of incentives an employer may offer, yet still have a “voluntary” wellness program under the ADA and GINA. The EEOC … Continue Reading
After staying on the litigation sidelines for years while the popularity of workplace wellness programs skyrocketed, the EEOC has brought its third lawsuit in about two months, alleging that the employer’s wellness program was not “voluntary” due to the “large” and “substantial” penalties to those who chose not to participate. Because the program was involuntary, … Continue Reading
After staying on the litigation sidelines for years while the popularity of workplace wellness programs skyrocketed, the EEOC has brought a second lawsuit just six weeks after its first, alleging that the employer’s wellness program was not “voluntary” due to the “dire consequences” to non- participants. Because the program was involuntary, the disability related inquiries … Continue Reading
Earlier this year, we posted that we continued to wait for ADA “voluntary” wellness plan guidance from the EEOC. In a January 18, 2013 informal letter responding to an inquiry concerning a wellness program, the EEOC reiterated its 2000 Guidance that it “has not taken a position on whether and to what extent a reward … Continue Reading
More than half of employers intend to shift some of the increased costs of the Affordable Care Act to employees, according to a recent study by the International Foundation of Employee Benefit Plans. The 2013 study reports that employers are planning to deal with the increased costs of the ACA by shifting costs to employees … Continue Reading
The EEOC passed yet again on the opportunity to provide guidance on the meaning of “voluntary” under the ADA as it applies to wellness plans. Guidance would be helpful because the ADA, the EEOC regulations, and the EEOC’s Interpretive and Enforcement Guidance permit employers to conduct voluntary medical examinations, including voluntary medical histories, as part of … Continue Reading
The class action wave seems to have come ashore for employers using financial incentives to drive participation in wellness programs. Leveraging the uncertain legal environment we have discussed previously, a federal district court in Florida granted class certification to current and former employees charged a $20 bi-weekly surcharge for not participating in a "voluntary" wellness program requiring biometric testing (finger stick for glucose and cholesterol) and completion of an online health risk assessment.… Continue Reading
Citing research from the Centers for Disease Control and Prevention, on June 5, 2010, the New York Times reported that one in five women are obese when they become pregnant. The article states "obesity might be contributing to record-high rates of Caesarean section and leading to more birth defects and deaths for mothers and babies." As well illustrated in the NYT … Continue Reading
