The Equal Employment Opportunity Commission (EEOC) announced recently that it intends to issue proposed regulations in the next 60 days to clarify its enforcement authority under the Americans with Disabilities Act (ADA) with respect to wellness programs offered by employers under their group health plans. According to the EEOC, the proposed regulations will be issued in February of 2015 and will address “whether an employer that complies with regulations implementing the final Health Insurance Portability and Accountability Act (HIPAA) rules concerning wellness program incentives, as amended by the Affordable Care Act (ACA), will be in compliance with the ADA.”
The EEOC’s announcement comes on the heels of recent enforcement activities of its Chicago District Office, which has jurisdiction over the States of Iowa, Minnesota, North Dakota, South Dakota, and Wisconsin, as well as most counties located in the State of Illinois (including Cook County). In three separate lawsuits filed since August 2014, the Chicago District Office has alleged that each employer’s wellness program violates the ADA and other federal employment discrimination laws. The lawsuits challenge practices that are commonly used under wellness programs, including biometric screening features and premium incentives designed to encourage employees to better utilize their health benefit plans.
While the EEOC’s announcement is welcome news, it is unlikely that the proposed regulations will address all of the uncertainties that employers will continue to face in offering their wellness programs. As a result, companies should review the details of their wellness programs and continue to monitor the EEOC’s enforcement activities.