Garrett Fenton Quoted Regarding Employer Requirements in EEOC Notice of Proposed Rulemaking in XpertHR

"EEOC Issues Proposed Rules on Wellness Programs"

Garrett Fenton was quoted regarding the Equal Employment Opportunity Commission's (EEOC's) Notice of Proposed Rulemaking, which elaborates on how the Americans with Disabilities Act (ADA) applies to employer wellness programs. The EEOC designed the Notice with the intent to harmonize the ADA's requirement that employee health program medical inquiries be voluntary with the Health Insurance Portability and Accountability Act's (HIPPA's) goal of allowing incentives to encourage wellness program participation.

The close coordination among agencies is particularly important because many labor laws and regulations, including ERISA and the Age Discrimination in Employment Act (ADEA), address wellness program requirements. However, the EEOC's proposals do not fully harmonize the employer requirements of this "complex web of federal rules," Fenton said, adding that under certain scenarios, the EEOC is more flexible in its requirements, while under others the Affordable Care Act (ACA) is more flexible.

Following the enactment of the ACA, wellness programs have garnered increased attention from employers as well as regulators. Despite this increased regulatory focus, wellness programs are often viewed as a "no-lose proposition for employers," Fenton said, adding that a properly implemented wellness program can "reduce bottom-line costs, and, as a practical matter, reduce overall absenteeism with a healthier workforce." He suggests employers focus on employee communications when implementing a health-contingent wellness program. Programs that are outcome-based, and not participation-only, have an "optics issue" that could result in a blow to employee morale if handled ineffectively, he said.

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