By Marla Durben Hirsch, contributing writer
If your practice has instituted an employer sponsored wellness program in accordance with the new rules issued by the Equal Employment Opportunity Commission (EEOC), it looks like those rules currently pass muster. The AARP’s request for a preliminary injunction to prevent the rules from going into effect January 1, 2017 has been shot down by a federal court.
Many employers have instituted voluntary wellness programs such as tobacco cessation classes, Fitbit teams and the like in order to promote and improve the health of their workforce. These programs are popular because they decrease the cost of health care by improving employee health.
Employers can’t discriminate against employees on the basis of disability or genetics, but the law allows employers that operate these wellness programs to conduct voluntary medical exams such as health risk assessments or diagnostic tests and collect medical histories, as part of these programs so long as participation is voluntary. The information collected can include disability or genetic protected information. Moreover, the employer can impose an incentive/penalty of up to 30 percent of the employee’s health insurance premiums for participation. In other words, an employee that doesn’t share her medical information can be subject to an up to 30% increase in the cost of her health insurance premiums.
The EEOC published rules in May 2016 clarifying how employer sponsored wellness programs which collect this confidential medical information would dovetail with the Americans with Disability Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) and imposing some requirements regarding how such wellness programs need to operate.
For instance, the program must be reasonably designed to promote health or prevent disease. Employers also need to provide notice to employees informing them what information will be collected, how it will be used, who will receive it and what will be done to keep it confidential. The notice also needs to state that employees may not be discriminated against in employment because of the medical information they provide as part of participating in the wellness program, nor may they be subjected to retaliation if they choose not to participate.
AARP is concerned that its members, who are older and may be less healthy, will be discriminated against if they reveal confidential medical information that they prefer to keep confidential, and penalized with the higher insurance premiums that they can’t afford if they choose not to. The organization filed a lawsuit in October 2016 to stop the rules from going into effect.
The federal District Court for the District of Columbia said no, ruling December 29, 2016 that the rules were not so onerous to cause “irreparable harm” such that the rule needed to be stopped in its tracks. It said that the rules were designed to prevent employers from using the information to discriminate against employees, and that AARP had not submitted sufficient evidence to show that people would suffer such irreparable harm that the rules could not even be implemented.
The EEOC rules went into effect January 1, 2017, so if you have or are considering operating a voluntary wellness program you can go forward – but you still need to comply. For instance, if you haven’t provided employees with that notice on how the employer sponsored wellness program will work, you need to do so promptly. The EEOC has created a sample notice that employers can adapt.
Practices should also keep an eye on this case. AARP has said that even though it wasn’t granted a preliminary injunction to keep the rules from going into effect, it’s still going to pursue its lawsuit challenging the rules. If AARP ultimately prevails, these wellness programs may need to be restructured.