After six years of uncertainty and turmoil, the Equal Employment Opportunity Commission has finally issued guidelines for employer sponsored wellness plans. And guess what? The guidelines closely follow the lead of the Patient Protection and Affordable Care Act.
The initial response from businesses and their organizational representatives was relief — since the EEOC had seemingly been heading in a direction quite opposite that which the White House had envisioned for wellness plans.
The controversy focused on supposed differences in emphasis between PPACA and its supporters, and the Americans with Disabilities Act. For years, the EEOC appeared to be ready to boldly challenge wellness plans on the basis that they discriminated against certain protected employees.
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Last fall, the commission began to sue businesses, including high profile ones like Honeywell, that offer inducements to employees to participate in such plan components as blood pressure measurement, cholesterol levels and other biometric screenings.
Thus the many critics of the EEOC's campaign against wellness incentives read its Notice of Proposed Rulemaking with surprise.
The proposed rule endorses the 30 percent rule included in PPACA. That states that employers can offer incentives to wellness participants of up to 30 percent of their insurance premium — a component of the act that many expected the EEOC to take issue with. The guidance endorses penalties for those who refuse to participate of up to the same level.
The guidance allows employers to include employee medical exams, questions about their health and biometric screenings in their wellness programs, as long as they don't overtly discriminate against any employee.
The guidance comes after several months of intense lobbying by a bipartisan group of supporters of the wellness program regulations contained in the PPACA.
Less than a month ago, the House of Representatives held hearings on the commission's wellness actions. Business representatives lined up to air their grievances over the mixed messages coming from the White House and the Commission.
But this week, all was sweetness and harmony on Capitol Hill.
"The EEOC worked closely with the Departments of Labor, Health and Human Services, and Treasury in developing this NPRM to harmonize the ADA's requirement that medical inquiries and exams that are part of an employee health program must be voluntary, and HIPAA's goal of allowing incentives to encourage participation in wellness programs," said EEOC Chair Jenny Yang.
The negotiations were no doubt heated at times, since the White House has done little to conceal its displeasure with the commission's attack on its signature reform initiative.
Business representatives hailed the guidance, noting that now employers will be able to design wellness plans confident that they will meet government scrutiny.
"The EEOC proposed rule is welcome news for employers, who can now breathe a sigh of relief. The EEOC has lifted a cloud of uncertainty that has been hovering over employer-sponsored wellness programs since the EEOC's legal actions last year," said Brian Marcotte, President and CEO of the National Business Group on Health.
"We've been waiting for a long time because there is been a lot of uncertainty," lawyer Seth Perretta, principal of Groom Law Group, told The Wall Street Journal. "Now we have a sense of what the four corners of the room are, and where the risks might be."
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Dan Cook
Dan Cook is a journalist and communications consultant based in Portland, OR. During his journalism career he has been a reporter and editor for a variety of media companies, including American Lawyer Media, BusinessWeek, Newhouse Newspapers, Knight-Ridder, Time Inc., and Reuters. He specializes in health care and insurance related coverage for BenefitsPRO.
