Watch Out – the Equal Employment Opportunity Commission is Heading Toward your wallet; they File Lawsuits Challenging the Voluntary Nature of Wellness Incentive Programs.
In the past three months, a regional office of the EEOC has filed three lawsuits against companies in relation to their wellness programs for perceived violations of the ADA and GINA. To date, despite pressure from many groups, the EEOC has not given definition to the amount considered voluntary, which creates ambiguity.
The positioning of the incentive as a penalty was also a factor in all three cases.
It is critical that a wellness incentive program is voluntary. The structure and positioning of the wellness incentive program should be positive and not a penalty or surcharge.
Until the EEOC provides guidance, it will be difficult to understand what amount constitutes voluntary. However, ACA guidelines defined an allowable maximum of 50% of the total premium for programs targeting tobacco use. So, that number can be used as a guide for what is acceptable across all incentives. Note that the risk reduces as the amount reduces.
We’ll be watching this. I’ll provide updates when available.
Thanks to Andy Carr, Health Management Services Product Leader, The Oswald Companies, and Andrea Esselstein, J.D., The Oswald Companies, for their original article.