Garrett Fenton Quoted Regarding New EEOC Wellness Rules in BNA Daily Report for Executives

"Wellness Rules Present Design Challenges for Employers"
BNA Daily Report for Executives

Garrett Fenton was quoted regarding the differences between the Affordable Care Act's (ACA's) wellness regulations and the newly finalized Equal Employment Opportunity Commission (EEOC) wellness regulations. "[O]ne of the big things for employers to understand is that there are differences between the previous rules under the" ACA and Health Insurance Portability and Accountability Act and the new rules under the Americans with Disabilities Act (ADA), Fenton said. "They were intended to be similar, but they're not identical." The EEOC recently issued final rules amending existing Genetic Information Nondiscrimination Act rules and creating new ADA regulations detailing how employers can offer inducements for wellness plan participation.

Fenton said that another element employers must consider is that the new ADA final rules are farther reaching in some respects, and apply to all wellness programs, whether or not they are offered as part of a group health plan. For instance, a wellness program that isn't tied to a group health plan would be subject to the new rules under the ADA, but not subject to the ACA rules. However, the ADA rules are narrower in other respects, in that they apply solely to wellness programs that involve so-called "disability-related inquiries" or medical examinations.

The new rules allow employers to offer employees and their spouses discounts of up to 30 percent on the costs of self-only coverage, which diverges from the ACA a bit, Fenton said. Under the ACA, plans cannot have incentives of more than 30 percent of the cost of coverage under a group plan. Under the ADA rules, employers have to look at all wellness programs subject to the new rules that are being offered to see if they are under the 30 percent limit, he said. "It shows how in the weeds employers need to be" that they need to make sure they are complying with the ADA rules and the ACA rules, along with "a host of other legal and tax issues that wellness programs implicate," he added.

This story also appeared in BNA Pension & Benefits Daily on June 8, 2016 and in BNA Government Employee Relations Report on June 14, 2016.

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