In May, the Equal Employment Opportunity Commission (EEOC) issued final regulations governing the treatment of wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).
The final rules, which will go into effect January 2017, apply to all workplace wellness programs, including those in which employees or their family members may participate without also enrolling in a particular health plan.They cover a wide variety of issues, from financial incentives, defining “voluntary”, and notice requirements to how the medical information gathered must be protected.
The total allowable incentive cannot exceed 30% of the total cost of self-only coverage. This is at odds with the Affordable Care Act (ACA), which authorizes incentives of up to 30% of the cost of coverage in which the employee is enrolled. Also, the ACA wellness program rules allow incentives of up to 50% for tobacco cessation programs. However, under the final rule, if an employer requires any biometric screening or other medical procedure that tests for the presence of nicotine or tobacco, the 30% incentive limit applies.
Employer-provided leave and the ADA
While this new guidance doesn’t carry the weight of official guidance, it is helpful in guiding employer decision-making when considering leave as an ADA reasonable accommodation. Attorney Jeff Novak, author of the blog, fmlainsights.com, notes the guidance offers illustrative examples and offers these highlights:
- Equal access to leave under an employer’s paid leave policies. The employee requesting the leave should be subject to the same requirements as an employee who requests leave for reasons unrelated to a disability.
- Unpaid leave must be considered as a Reasonable Accommodation. An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if: 1) the employee requires it; and 2) it does not create an undue hardship for the employer.
- All requests for leave must be treated as a request for a reasonable accommodation.
- Utilize “automatic termination” provisions at your own risk. Policies that call for termination of employment after the employee has been absent for a certain period of time (e.g., 3 mos., 6 mos., etc.), do not sufficiently meet the employer’s obligation to engage in the ADA’s interactive process.
- Reassignment to a vacant position. Deemed by the courts as the “accommodation of last resort,” reassignment still must be considered if all else fails.
- Approach the undue hardship analysis carefully. While there is some guidance on defining undue hardship, it is still nebulous.
- Medical information. Employers can obtain critical medical information from the employee’s health care provider to help make decisions on leave requests. If an employee asks for an extension of ADA leave, employers can obtain even more information.
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