EEOC to take closer look at wellness incentivesNews added by Benefits Pro on June 16, 2014

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By Dan Cook

Tinker, tinker, tinker. That’s the sound of the Equal Employment Opportunity Commission trying to fine-tune — once again — the rules around wellness program incentives.

Such incentives exist, and are increasingly in use, because companies that offer wellness plans have had trouble driving participation by employees. Incentives, both financial and otherwise, and perceived “penalties” have cropped up as a way to increase participation.

But the EEOC has been concerned that incentives applied too broadly will discriminate against certain protected classes of workers. Disabled employees often can’t take full advantage of certain incentives, such as walking X miles a week. Now, according to a report in HRMorning, the commission is reexamining both incentives and health assessment forms for possible discriminatory elements.

The latest tinkering popped up on an agenda for upcoming actions released by the EEOC. The agenda, reported HRMorning, included word of a new rule to dig deeper into incentives to root out discrimination there, and another to examine health assessments tied to wellness plans for any evidence of violations of the Genetic Information Nondiscrimination Act.

“At the heart of the problem [with wellness incentives] is the fact that while many employers would love to be able to offer financial incentives or penalties to drive employees to meet certain health goals in wellness programs, setting blanket health goals isn’t fair. The reason is because disabled individuals may not be able to meet those goals,” HRMorning wrote. “As a result, there are questions surrounding what kinds of goals are legal and how employers can safely establish alternative goals for disabled individuals.

“This section of the EEOC’s new Regulatory Agenda seems to suggest the agency is out to clear the air in this area. But what employers don’t want to see is an expansion of the ADA that would make it even more difficult to design effective wellness programs, penalties and incentives. Based on the EEOC’s vague description of the rulemaking process, it hard to say which form the regulations will take.”

As for genetic information discrimination, the commission’s approach will apparently be the same: to look more closely at health assessment forms being used, and to try to tighten up their use so employers aren’t asking too many questions that could discriminate against some workers.

“The hope, at least among employers with wellness programs, is the EEOC will allow them to continue to offer financial incentives to encourage employees and their family members to take such assessments — but, again, you never know where the feds’ heads are at,” HRMorning said.

The new rules may appear sometime this summer, according to the commission. Until then, employers ought to hold off updating their wellness plan incentives section.

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