Articles Discussing Workplace Wellness Programs.

In the second of a two-part podcast celebrating Black History Month, Littler associates Jason Byrd (New York) and Jo Gbujama (San Francisco) talk with licensed clinical psychologist and author, Dr. Adia Gooden, about the interpersonal journey of Black health and wellness, and techniques for navigating everyday issues. 

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The U.S. Equal Employment Opportunity Commission (EEOC) recently issued its revamped proposed rules governing employer-sponsored wellness programs. These proposed rules have been a long time coming, with the EEOC’s prior rules on the topic having been invalidated by a court and then partially revoked. In this current proposal, the EEOC

Since 1996, when Congress passed the Health Insurance Portability and Accountability Act (HIPAA), employers have been struggling with whether and to what extent they could offer incentives to employees to participate in certain “wellness programs.” The Equal Employment Opportunity Commission’s (EEOC) position on these programs has been a significant driver

The rules for employer-sponsored wellness programs continue to be a moving target; most recently, regulations issued by the Equal Employment Opportunity Commission (“EEOC”) intending to address issues under the Americans with Disabilities Act (“ADA”) and the Genetic Information Non-Discrimination Act (“GINA”).

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 receipt of incentives on the employee’s disclosure of American with Disabilities Act (“ADA”) or Genetic Information Nondiscrimination Act (“GINA”) protected information.

In spring 2016 we notified you that the Equal Employment Opportunity Commission’s (EEOC) finalized regulations aimed at ensuring employer wellness programs comport with the Genetic Information Nondiscrimination Act (GINA) and Americans with Disabilities Act (ADA) would take effect as of the first day of the first plan year beginning on or after January 1, 2017.

The U.S. District Court for the District of Columbia invalidated the EEOC’s final regulations on the operation of voluntary wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). The court ordered the EEOC to further consider its rules as required by the Federal Administrative Procedures Act (APA), but it did not vacate the regulations.

On April 5, 2017 the Equal Employment Opportunity Commission (EEOC) announced that it had reached a settlement with Orion Energy Systems, Inc. (Orion) relating to the EEOC’s claims that Orion’s wellness program violated the American with Disabilities Act (ADA) because participation was involuntary, and that Orion retaliated against an employee who objected to the program. See https://www.eeoc.gov/eeoc/newsroom/release/4-5-17a.cfm.

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 programs to be linked to financial incentives.

On January 25, 2017, in Equal Employment Opportunity Commission v. Flambeau, Inc., the Seventh Circuit rejected an EEOC challenge to an employer wellness program. The circuit court had the opportunity to address whether an employer’s wellness program was an involuntary medical examination pursuant to the ADA, 42 U.S.C. 12112(d)(4), but instead found the issues of statutory interpretation to be moot. As a result, employers are without what would have been welcome guidance on the ADA’s boundaries with respect to wellness programs.

As previously discussed, AARP has filed suit against the EEOC and challenged the agency’s wellness regulations. See http://www.disabilityleavelaw.com/2016/10/articles/ada/the-eeocs-2016-wellness-program-regulations-the-saga-continues/ On December 29, 2016, this challenge suffered a setback. In the December 29, 2016 Memorandum Opinion, U.S. District Judge John D. Bates denied AARP’s request for preliminary injunction and held that the regulations would take effect on January 1, 2017.

The EEOC’s 2016 wellness program regulations are once again under fire. On October 24, 2016, AARP filed a complaint against the EEOC in D.C. federal court challenging the EEOC’s rules relating to wellness programs. See AARP v. EEOC Specifically, AARP seeks a ruling that the 2016 Regulations relating to the Equal Employment Provisions of the Americans with Disabilities Act (the “2016 ADA Rule”) (29 C.F.R. §§ 1630.14(d)(3)) and Title II of the Genetic Information Nondiscrimination Act (the “GINA Rule”) (29 C.F.R. § 1635.8(b)(2)(iii)) are unlawful and request a preliminary injunction that would prevent the rules from taking effect on Jan. 1, 2017.

In a much anticipated decision, a Wisconsin federal district court has granted Orion Energy Systems, Inc.’s summary judgment on the EEOC’s challenge to its wellness program design. See Sept 19, 2016 Decision and Order. While largely good news for Orion, the ruling creates even more confusion for employers seeking clarity on wellness program design principles. In short, the Court: 1) rejected the EEOC’s claim that the wellness program violated the ADA because it was “involuntary;” 2) upheld the EEOC’s position that the ADA’s “safe harbor” for insurance could not be used to defend the wellness program design; and 3) held there was a triable issue on whether the employer’s termination of an employee who refused to participate in the wellness program was unlawful retaliation under the ADA. The case lives on due to the retaliation claim but many employers are scratching their heads on what the ADA requires for wellness programs going forward.

Employee wellness programs are all the rage.