Last week, U.S. Sen. Lamar Alexander (R-Tenn.) and Rep. John Kline (R-Minn.) with Sens. Mike Enzi (R-Wyo.), Johnny Isakson (R-Ga.), Tim Scott (R-S.C.), Orrin Hatch (R-Utah), Pat Roberts (R-Kan.), and Rep. Tim Walberg (R-Mich.) introduced legislation to “provide legal certainty—and eliminate confusion caused by the Equal Employment Opportunity Commission (EEOC)—for employers offering employee wellness programs that lower health insurance premiums to reward healthy lifestyle choices.” There is no doubt that Congress introduced this legislation in response to the recent lawsuits brought by the EEOC against Honeywell, Flambeau and Orion Energy Systems.
A draft of the bill can be seen here.
This bill attempts to align the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) with the Affordable Care Act (ACA) rules on worksite wellness programs. In particular, the bill states that an employer-sponsored wellness program that offers rewards that comply with the ACA provisions will not violate the ADA or Titles I or II of GINA. The bill allows the ADA to still apply to workplace wellness programs, just not with regard to ACA-compliant rewards. The bill would also allow workplace wellness programs to collect information about the manifestation of disease or disorder from family members without violating Titles I or II of GINA. “Family members” has the same meaning as defined by GINA. Finally, the bill permits workplace wellness programs to establish a deadline of up to 180 days for employees to request and complete a reasonable alternative standard or waiver of the otherwise applicable standard. The bill, if passed, would have a retroactive effective date of March 23, 2010 – the date on which the ACA was enacted.
It is unclear at this point whether the bill will pass. But, it does send a message to the EEOC that Congress is willing to act if the EEOC is not. We are still waiting for rules from the EEOC that are expected to provide clarity with regard to how the ADA, GINA and the ACA are to work together in terms of workplace wellness program design. The EEOC indicated such proposed rules would be issued in February this year. But, it also said that was only a “target date.” To view the agenda discussing the proposed rule changes, click here and here.
At this point, any guidance, whether it is from Congress or the EEOC, would be welcome.
In other news, U.S. Representative Ron Kind from Wisconsin re-introduced bipartisan legislation, the PHIT Act, that would allow U.S. taxpayers to use pre-tax dollars to fund physical activity. In a country plagued with high rates of obesity and lack of physical fitness, this bill makes sense. Please click on the link to the PHIT Act and follow the guide to support this bill.
