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.
