Garrett Fenton Quoted Regarding Application of Seff Decision on EEOC Guidance in Law360

"3 Questions About EEOC Rules And Wellness Programs"

Garrett Fenton commented on remaining questions surrounding the Americans with Disabilities Act's (ADA's) safe harbor provision for insurance plans and the Genetic Information Nondiscrimination Act (GINA) following recent guidance by the U.S. Equal Employment Opportunity Commission (EEOC). "We've really had no guidance, up until now, on how the ADA interacts with wellness programs," Fenton said. Because wellness programs can reduce costs and limit absenteeism, Fenton said they are popular and have been becoming increasingly so in recent years.

According to the EEOC, based on Seff v. Broward County, the ADA has a safe harbor for wellness programs and states that "voluntary" medical examinations that are part of an employee health program are acceptable. "There is some uncertainty. We don't know if we can rely on Seff," said Fenton, who explained that if Seff were to be accepted as the law of the land, employers could essentially ignore the EEOC's proposed rule and focus on complying with the ADA's insurance plan safe harbor, as opposed to whether wellness programs meet the agency's requirements for being voluntary.

Proposed regulations are expected in the near future to answer additional questions on wellness programs and GINA, particularly regarding uncertainties that still exist about incentives for employees' spouses to complete health risk assessments. "That is a big open issue under GINA: How wellness programs will be treated if they reward or penalize employee spouses," Fenton said.

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