EEOC Sends OMB Notice About Wellness Program Rules

The submission represents the start of the regulatory process.

The U.S. Equal Employment Opportunity Commission (EEOC) sent a Notice of Proposed Rulemaking (NPRM) with respect to wellness programs to the White House Office of Management and Budget (OMB) for clearance.

The proposed rule, which was approved by a bipartisan vote, would amend the regulations implementing the equal employment provisions of the Americans with Disabilities Act (ADA) to address the interaction between Title I of the ADA and financial incentives as part of wellness programs offered through group health plans.

The submission of the NPRM to OMB represents the start of the regulatory process. After OMB approval, the proposed rule will be published in the Federal Register for a 60-day public notice and comment period.

The Patient Protection and Affordable Care Act (ACA) supported regulations providing that a wellness program conditioning a financial incentive on the participant meeting a standard related to a health factor is acceptable so long as it met certain criteria. However, the EEOC has filed several lawsuits accusing employers of violating the ADA and/or the Genetic Information Nondiscrimination Act (GINA) by failing to provide incentives to employees who would not complete a wellness program assessment or screening.

In January, witnesses told a U.S. Senate committee more guidance is needed for workplace wellness programs.

Earlier this month, U.S. Senator Johnny Isakson (R-Georgia) introduced legislation to reaffirm employers are within their legal rights to offer a financial reward in the form of lower health insurance premiums to employees who voluntarily make healthy lifestyle choices or who complete wellness programs. Isakson said the legislation is designed to provide legal certainty for employers and to eliminate confusion caused by EEOC lawsuits.