EEOC Votes on Proposed Wellness Rule, as House Hearing Focuses on Bills to Rein in Agency

Wellness

Late last week, the Equal Employment Opportunity Commission voted 4 to 1 to send to the Office of Management and Budget a proposed rule clarifying the legality of financial incentives under the Americans with Disabilities Act when used in wellness programs.  Although the proposed rule is likely to allow employee wellness programs to have financial incentives up to 30 percent of the cost of coverage (and 50% for tobacco cessation programs), the EEOC may also propose a number of conditions and/or reporting requirements on employers to ensure their wellness programs are voluntary and are not a "a subterfuge for discriminating based on a health factor."  Once OMB reviews and approves the proposed rule, a process that could take up to 120 days, the rule will be published in the Federal Register.  Separately, the Employee Benefit Research Institute released a report that shows wellness program financial incentives appear to be effective at encouraging the participation of employees who are in most need of the program.  Wellness programs were also a focus of a hearing this week by the House Subcommittee on Workforce Protections.  The HR Policy-supported Preserving Employee Wellness Programs Act (H.R. 1189), was one of four measures considered by the Subcommittee, with Chairman Tim Walberg (R-MI) noting that "litigation pursued by the Commission is actually discouraging employers from implementing these programs, even though Congress on a bipartisan basis has expressed its clear support for employee wellness programs."  The other three measures would: give employers a safe harbor if they follow other federal or state laws mandating criminal background checks (H.R. 548); require the EEOC to meet a "good faith" standard for its conciliation efforts (H.R. 550); and require the EEOC's five commissioners to exert greater control over agency lawsuits (H.R. 549).