Hang tight, employers -- EEOC's proposed Wellness Rule is at the OMB

The EEOC's much-awaited proposed rule on employer wellness programs, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act may finally be on its way. According to Law360, a proposed rule has been approved 4-1 by the Commission, and is being reviewed by the Office of Management and Budget as we speak.

Once approved by the OMB, the proposed rule will be published, and there will be a 60-day period for interested parties to comment.

The Affordable Care Act provides significant latitude to employers -- including the ability to provide rewards for employees who participate in wellness programs and achieve results, and penalties for employees who decline to participate in the programs.

However, the ADA does not allow employers to request employee medical information unless the information is either "job-related and consistent with business necessity" or requested in connection with a voluntary wellness program. Thus, the question arises whether a wellness program is truly "voluntary" if the employer is rewarding employees who participate and penalizing employees who don't.

I've written about this subject a few times in the past:

EEOC promises guidance on wellness programs in February

BREAKING: EEOC seeks court order to halt Honeywell's biometric testing

Is the EEOC off the rails with this new "wellness" lawsuit? Don't think so.

Guidance on employer incentives for wellness participation is on the way, says the EEOC

"Voluntary" wellness programs - seeking answers from the EEOC

Wellness "sticks" as well as "carrots" are legal, court says

Employers, don't be overzealous with your wellness

Is it ok under the ADA and the GINA to offer wellness incentives? The EEOC explains it all for you

Needless to say, we'll have a full report on the proposed rule as soon as it is issued.

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). 
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