U.S. Equal Employment Opportunity Commission (EEOC) Chair Jenny Yang announced the agency’s intention in 2015 to propose new regulations addressing the interplay between corporate wellness programs and federal anti-discrimination statutes. The EEOC raised eyebrows recently by launching its first-ever series of lawsuits under the Americans with Disabilities Act (ADA) directly challenging wellness programs. Many critics complained the agency engaged in litigation against employers without giving them needed clarity on how not to run afoul of the ADA, as well as the Genetic Information Nondiscrimination Act (GINA). The interplay between corporate wellness programs and the Affordable Care Act only heightens the need for additional clarity from the EEOC. “That is an area that we think is very important for us, as a commission, to provide guidance on — how the Affordable Care Act interacts with the ADA and other laws such as GINA,” said Yang.
The EEOC’s fall 2014 regulatory agenda lists two rules—to amend regulations under the ADA and GINA respectively—for which notices of proposed rulemaking are slated for February. The ADA-related rule aims to tackle “financial inducements and/or penalties” under health plan wellness programs, as well as other aspects of wellness programs, and their interaction with the ADA. The other rule seeks to address inducements to workers’ spouses or other family members who answer questions about current or past medical conditions. The EEOC said voluntary wellness programs are permissible, but they must be genuinely voluntary.
While offering clarity remains the goal, the EEOC stops short of guaranteeing that the notices of proposed rulemaking will actually issue in February 2015. “The [February 2015] date is somewhat of a target; it’s not a fixed date,” said Yang. “I wish I could give you a more certain prediction, but I can say that it’s something we’re going to be focusing on.”