May 07, 2015 | Compliance

EEOC Amendments: Bridging the Great Divide

Who would have ever dreamed that the idea of an employee wellness program could spar such heated debate? Some seem to take strong exception to the idea of employers offering wellness programs and initiatives to make it easier for their employees to learn of high risks early enough to avoid life altering medical conditions.  Still others feel employers aren’t doing nearly enough and believe they have a moral obligation to society to educate and proactively manage the health of their population. Let’s face it, we all know what news channel to watch if we align with the President’s agenda and which news channel to watch if we don’t. We’ve become a society where you can often choose the “truth” you want to believe and find ample research and expert opinions to support it. For the wellness issue, you can join a LinkedIn group to find others who think wellness is a scam or find groups that continuously report success stories and satisfied customers. What do you want to believe?

The proposed amendments to the Americans with Disabilities Act (ADA) formally published on April 20th by the EEOC highlight this “great divide” in spades. Undoubtedly, the Equal Employment Opportunity Commission (EEOC) must field a steady stream of horrific complaints about employers who cross the line in the way they choose to treat their employees. People get tainted. Individuals who have spent their career working for trustworthy, honest and caring employers simply cannot relate to the accusations often hurled by less fortunate employees who are unable to trust “the man” based on their own negative experiences and the experiences that they’ve heard about from others.

Of course employee privacy is paramount. Of course “genetic information” such as the analysis of human DNA, RNA and chromosomes (as outlined in the Genetic Information Non-Discrimination Act (GINA)) shouldn’t be part of an employer’s required testing. Of course accommodations need to be made for the disabled who can’t qualify for a discount available to those who walk 10,000 steps because they are confined to a wheelchair. If these are the clarifications that the EEOC needs to make because some employers don’t use common sense or have a program that is reasonable and fair – we’re all for it. On the other hand, if people want to try and use the ADA regulations to change existing laws by suggesting that tobacco use is a genetic issue and that spouses are genetic relatives we can’t agree. If you don’t like the Affordable Care Act (ACA) or Health Insurance Portability and Accountability Act (HIPAA) regulations and, in spite of your comments to influence the final rules, it didn’t go your way, do the honorable thing and write a letter, start a petition, or call your congressman. Please don’t try and stretch the important ADA and GINA regulations to forbid employee wellness plan incentives. Not all employers are evil. These programs can and do save lives (and money).

Personally, I think the “Preservation of Employee Wellness Programs Act” largely has it right. Simply stated, a wellness incentive plan that meets all of the requirements of the ACA and HIPAA should be viewed as compliant with the ADA and GINA. Incentives are “voluntary” as long as they don’t exceed permitted limits. Current privacy laws and regulations need to be abided by. We don’t need two different regulatory bodies interpreting what “reasonable” or “overly burdensome” means. The EEOC should make sure that individuals with disabilities are given reasonable alternatives in wellness programs just as they are in other areas. They should not re-write the ACA wellness rules.

In the coming weeks, we will be reviewing the wellness and incentive programs our clients currently offer and explaining what, if any, changes would need to be made if the proposed EEOC amendments were to pass as is. Of course this is a difficult task because several key features are unclear and need to be clarified, and other components were published as questions rather than rules. Clearly it doesn’t make sense to make radical changes to plans just yet. We will also be providing each customer with suggested feedback to sign and send to the EEOC. Universally, this will include things like:

  • Allowing the total of all participation-based and health-contingent wellness incentives or penalties to be as large as 30% of total premium and 50% if the amount above 30% is limited to tobacco or nicotine use. This should be 30 – 50% of “the cost of coverage in which an individual is enrolled as long as another class of dependents (such as spouses) is also able to participate in the wellness program”. The ability to include covered spouses in wellness programs and incentives must be retained.
  • Tobacco use should be able to be verified by a blood, urine or saliva test. The presence of nicotine should coincide with ones enrollment in a comprehensive tobacco cessation program that includes the oversight of nicotine replacement therapy. If an individual claims to not smoke, test positive for nicotine and are not enrolled in a cessation program, plans should be able to deny incentives or apply penalties.
  • “Income” is not a protected class under the ADA, GINA or other EEOC regulations and should not become a factor in new rules. The ACA already includes affordability requirements that prevent an employee from being charged more than 9.5% of their income regardless of their wellness incentives or penalties (excluding tobacco use).
  • The ACA requirements to provide “reasonable alternatives” to individuals who cannot participate in a program if they have a medical condition (or disability) that makes participation unreasonably or inadvisable should not be expanded to become an alternative for anyone who simply doesn’t want to do it.
  • The suggestion of having a doctor write a note that says a person is under their care and all risks are being managed, becoming a “free pass” to automatically earn all wellness incentives offered, is not acceptable. A primary reason that health education, preventative screenings and health counselling is needed at the workplace is the fact that studies confirm physicians spend an average of 3 to 8 minutes with patients and they often do not have time to really listen, diagnose or treat issues that are early stage and not urgent.
  • “Reasonable”, “Not unreasonable”, “Overly burdensome” and similar terms that are widely subject to interpretation should be yielded to the existing regulatory bodies who wrote these terms into the ACA.
  • We applaud the requirement for clear written notification that programs are voluntary and outlines of what information will be gathered, who will have access to it, how it will be protected and how it will be used. This was not clearly included in the ACA regulations, and there is currently no protection for individuals who are not covered in a group health plan, but should still be offered in wellness program.
  • We also applaud the requirement for a comprehensive health risk assessment or other resources that alert individuals to their health risks and provide practical advice regarding the mitigation of such risks. An incentive alone is not a wellness program. That being said, individuals should be able to voluntarily participate in a health screening but not the health assessment without the plan running afoul of regulations.

There are other points but these make the highlight reel and will be included in Bravo’s comments. Please contact your account manager if you have questions about any of these points.

Topics: Compliance

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