By Frank Fatigato
On March 2, the House (H. 1189) and Senate (S. 620) introduced companion bills titled Preserving Employee Wellness Programs Act, which if enacted would re-solidify Congress commitment to wellness programs for improving health and lowering health care costs.
These bills come in response to the U.S. Equal Employment Opportunity Commission (EEOC) lawsuits filed against employers at the end of last year. Most notably, in EEOC v. Honeywell International Inc., the EEOC claimed that Honeywells employer wellness program was not voluntary under the terms of the Americans with Disabilities Act (ADA) and the Genetic Information Non-disclosure Act (GINA). Despite the program being in full compliance with the incentive limitations of the Affordable Care Act (ACA), the EEOC argued that the programs were not voluntary because of these same participation incentives. Both employers and the government were surprised by the litigation because the agency had repeatedly failed to deliver guidelines on how employer wellness programs could appropriately comply with the intersection of all three laws.
Concern over the EEOCs initiation of lawsuits against employer wellness programs prompted Congress to hold a joint committee hearing at the end of January this year. During the hearing members admonished the EEOC for pursuing litigation without issuing guidance over the definition of voluntary in relation to wellness programs. The EEOC has responded by acknowledging the deficiency in clarity and has promised to issue guidelines early in 2015.
The essential function of the Preserving Employee Wellness Programs Act is to establish that employer offered wellness programs offering rewards that remain at or below the maximum percentage available under the ACA do not violate the voluntariness requirements of the ADA or GINA. Additionally, wellness programs will not violate GINA when information is collected about family members who are also participating in the wellness program.
As always, these reward incentives remain bound to the ACAs reasonable alternative standard which guarantees that all employees remain eligible for rewards by completing a reasonable alternative, thereby protecting employees from any wellness program unfairly discriminating against an employee based on his or her current health.
The EEOC should soon issue its guidelines for maintaining the voluntariness of wellness programs under the ADA and GINA; however, for now, these companion bills recognize that when wellness programs are in compliance with the incentive limitations of the ACA that those programs are voluntary. Given the intricacies and added complexities presented by the EEOC, Vitality has always and will continue to consult and work with each of its clients to ensure they are comfortable with the laws at play. The flexibility of the Vitality Program allows each employer to select their own incentive structure to ensure all are comfortable.