EEOC promises guidance on wellness programs in February

Good news! The Equal Employment Opportunity Commission recently announced in its 2015 regulatory agenda that it will be issuing proposed regulations on the impact of the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act on wellness programs. The proposed regs are expected in February.

To read about the continuing saga of the ADA/GINA and employer wellness programs, go here, here, here, here, here, and here.

The EEOC recently sought an injunction to stop Honeywell International from requesting health and genetic information from current employees* in connection with a wellness program. The ADA and the GINA prohibit employers for asking for it unless it's either "job-related and consistent with business necessity" or done in connection with a voluntary wellness program. The information was clearly not JRCBN. And because the financial penalties were stiff for employees who elected not to participate, the EEOC contended that the program was not truly "voluntary," either. (Only problem was, Honeywell's program fully complied with the wellness program provisions of the Affordable Care Act.) The EEOC's request for an injunction was denied.

*Under the GINA, medical information about an employee's family member is considered "genetic information." This oddly includes "spouses," even though spouses are not related. This was the basis for the GINA allegation against Honeywell - it was requesting spousal medical information.

The EEOC has another lawsuit pending against Orion Energy Systems, a Wisconsin company that allegedly terminated an employee for refusing to participate in the wellness program, complaining about it, and encouraging co-workers to decline to participate. The EEOC alleges ADA retaliation in that case.

Anyway, thank you, EEOC -- employers and their attorneys are eager to hear what you have to say.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
Continue Reading



Back to Page