The EEOC has
been working on these rules since last year. Their efforts began after the agency filed an
unsuccessful motion for a temporary
injunction meant to stop the implementation of parts of a large employer’s
wellness program. The motion attempted
to prohibit Honeywell from implementing changes to its wellness program that
(as the EEOC characterized it) “penalized” employees if they chose not to
submit to biometric testing, including a blood draw. The agency has engaged in other, similar litigation,
bringing lawsuit
after lawsuit
against employers that required employees to submit to health testing.
The proposed wellness program rules state that
participation in wellness programs be voluntary, and define what makes a program
voluntary. A wellness program must not:
-
Require employees to participate;
-
Deny coverage under any of the employer’s group health plans or benefit packages because of non-participation; or
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Result in adverse employment action or retaliation, coercion, or intimidation of employees.
Further, if the program is part of a group health plan,
the program must give specific, understandable notice of how medical
information obtained as part of the program will be used, who will use the
information, restrictions on the disclosure of the information, and what steps
will be taken to protect the information.
As for incentives, the EEOC has set a very specific
threshold for allowable monetary value.
If an employer offers an incentive to employees who participate in a
wellness plan, the incentive cannot have a value of more than 30 percent of the
total cost of employee-only health coverage.
Finally, the new rules limit how an employer or group
health plan can collect and use health information, including biometric
testing, obtained as part of a wellness program. The information may only be
collected if it is intended to promote
health or prevent disease. That means,
among other things, that the information must be shared with the employee so
that he or she can take steps to improve health. If an employer suggests a specific plan to
improve an employee’s health based on the information, the employer cannot set
unreasonable timeframes or procedures that would be burdensome to the employee.
Public comment on these proposed rules can be submitted
until early June, with issuance of final rules to follow. Much commentary is
expected, from employee and employer groups alike. We’ll keep you posted.
Posted by Judy Langevin and Patricia St. Peter
