With the rise of incentive based wellness programs across the country, employers need to focus on providing incentives to employees who adopt healthy practices rather than punishing those who do not. An employer certainly may adopt voluntary wellness programs, but such programs need to be handled with precision. As wellness programs continue to evolve, they have to fall in line with federal regulations, finding a balance between disparate requirements. Most importantly. The U.S. Equal Employment Opportunity Commission (EEOC) will soon release its long-awaited rules on the interplay between the Americans with Disabilities Act (ADA) and the Affordable Care Act (ACA), and how they affect incentive based wellness programs.
EEOC & Incentive Based Wellness Programs
According to the EEOC, the new rules will amend the regulations concerning the implementation of the equal employment provisions of the Americans with Disabilities Act. The goal of the ADA amendments is to address the interaction between Title I of the ADA that prohibits employment discrimination, and financial incentives as part of wellness programs promoted by the ACA and offered through group health plans. The question is how to find a balance between incentive based wellness programs and non-discrimination regulations.
Many employers offer a wide range of programs to promote health and prevent disease among their workers. For example, some employers may provide pedometers to encourage employee walking and exercising or pay for gym memberships. EEOC regulations permit employers to conduct medical examinations, which can include obtaining medical histories, as part of a voluntary wellness program. For years, the EEOC’s position has been that “[a] wellness program is ‘voluntary’ as long as an employer neither requires participation nor penalizes employees who do not participate.”
The Shocking Truth Of The EEOC & Wellness Programs
When the EEOC began suing employers in 2015 about the discriminatory aspects of their wellness programs, HR leaders were put on notice. If you have a program in place or are thinking about starting a wellness program, confusion is sure to follow. According to legal experts and other interested observers, the EEOC’s legal actions, based on violations of the ADA and Title I, are in direct conflict with the ACA, which encourages wellness programs for employees.
Steve Wojcik, vice president of public policy at the National Business Group on Health, points out that the conflicting messages would give any employer “reason to pause… We believe the EEOC needs to issue clear guidance that recognizes the importance of wellness programs and encourages employers to continue to offer them… In the meantime, employers should again review their programs for compliance, particularly the incentives, and clearly communicate alternative ways to obtain them.”
Be Careful With Your Company’s Wellness Program
After many companies have invested a huge amount of time and money into making sure that their wellness programs comply with the ACA, the EEOC is now coming “out of left field” with a whole new set of rules and regulations to impose on these programs. Gretchen Young, senior vice president for health policy with the ERISA Industry Committee, believes the danger in terms of wellness programs is that, “The EEOC has apparently decided that it will be playing by a different set of rules, with no forewarning to companies whatsoever.”
For now, the best strategy for employers is to understand the risk associated with your wellness program, and then think about the things you can do to mitigate that risk. Employee education can help participants understand why wellness is important and what the employer is doing to help. Employers also can provide alternatives to the incentive based rewards within their wellness programs that can be accessed by every employee regardless of physical condition or potential disability. A perfect example of a non-incentive based wellness bonuses are adding more healthy alternatives to cafeteria menus or vending machines.
Total HR Management Can Help
Employers need guidance regarding the ADA and wellness programs, and Total HR Management can help. A major component is reserving the right to change your plan should the need arise. By including the reservation of rights in the written description of a company’s wellness program, your company can make changes as federal regulations shift with the greater tide.
Although Total HR Management supports the positive health benefits of wellness programs, we also advise our client companies to be careful in light of the current federal discrepancies. To learn more about how to implement a wellness program that navigates the balance, please call Total HR today at (800) 975-5128 to set-up an HR audit.
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