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    Facing criticism for filing lawsuits before providing guidance, the Equal Opportunity Commission (EEOC) recently released proposed rules for wellness programs and compliance with the Americans with Disabilities Act (ADA). The positive is that the EEOC stuck close to guidance already issued by other governmental agencies. The EEOC’s concern was the voluntary nature of wellness programs when providing financial incentives.

    To be considered voluntary, the proposed rules require wellness programs to be reasonably designed to promote health or prevent disease. In addition, an employee cannot be required to participate, denied coverage under a group health plan for failing to participate, or retaliated against or threatened for failing to participate. The amount of financial incentives is capped at a percentage of health insurance coverage. Finally, employees must receive a notice describing what medical information is obtained, how is it used, who is using it and restrictions on its disclosure.

    Wisely, the EEOC borrowed many principles from guidance already released by the other governmental agencies – such as the cap on financial incentives. Indeed, the Department of Labor, Department of Treasury and Department of Health and Human Resources had already released guidance on how financial incentives within wellness programs could comply with their respective laws. In the words of the EEOC, the best way to effectuate the purposes of wellness programs under all laws is to allow certain incentives while limiting them to prevent economic coercion.

    Although many principles are found in prior guidance, there are some new requirements – such as the employee notice. If your company sponsors a wellness program or is thinking of initiating one, you should review its provision to verify compliance with these newly released EEOC proposed rules.

    Brian K. Furgala
    GrayRobinson, P.A.
    301 East Pine Street
    Suite 1400
    Orlando, Florida 32801
    Phone: 407-843-8880
    Fax: 407-244-5690

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