EEOC Issues Final Rules Addressing the Implications of ADA/GINA on Wellness Programs

WellnessToday, the Equal Employment Opportunity Commission (“EEOC”) released its final rules to amend regulations implementing Title I of the Americans with Disabilities Act (“ADA”) and Title II of the Genetic Information Non-Discrimination Act (“GINA”) as they relate to workplace wellness programs.  The EEOC had originally issued two Notices of Proposed Rulemaking in 2015 to revise current regulations as a result of the confusion surrounding how both the ADA and GINA impact wellness programs under the Affordable Care Act (“ACA”) and its regulations.  The final rules released today largely mirror the proposed regulations, with some important changes.  They will apply only prospectively starting the first day of the first plan year that begins on or after January 1, 2017 for the applicable health plan.

Below are the major provisions from each rule, as well as a discussion of the current legal landscape for employer wellness programs based on recent lawsuits brought by the EEOC.  Although the guidance from the EEOC is long overdue, the requirements these final rules impose do not completely align with the ACA, its regulations, or the intent to promote the use of wellness programs under the ACA.

Highlights of the Final Rule Revising ADA Regulations

As we discussed in a prior post, a major focus of the EEOC’s final rule is to address when a wellness program will be viewed as voluntary under the ADA.  As employers may already be aware, the ADA generally prohibits Continue reading

As Retaliation Claims Rise, Employers Face New Challenges Under Employment, OSHA and Health Care Laws

Authored By:  Kara M. Maciel & Eric J. Conn

Whistleblower  As we discussed in a recent webinar, employers are facing an increased risk of defending a retaliation complaint as administrative policy changes and expansive federal laws make asserting these claims easier for employees.

Whistleblower and related-retaliation charges are on the rise throughout the country, and the Occupational Safety and Health Administration (OSHA), tasked with fielding complaints under 22 laws, is also becoming more aggressive. The Equal Employment Opportunity Commission (EEOC) enforces the anti-retaliation provisions of several laws, including Title VII and the ADA.  In addition, sweeping laws like the Affordable Care Act (ACA) are creating increased fodder for discrimination complaints.  Armed with increased financial resources, federal investigators now aim to be more receptive to complaints as part of what the EEOC and OSHA view as needed reforms of their whistleblower enforcement arm.

Claims on the Rise

Retaliation claims under Title VII have grown substantially over the years. More than a decade ago, these claims made up less than a quarter of all EEOC charges, but since then they have increased exponentially.  Now not only do they make up the most significant portion of claims, they are almost 50 percent of all claims brought.  OSH Act 11(c) claims have also been increasing, and are now about double the number from 10 years ago.  Despite the large number of 11(c) claims, however, about 72 percent of them are withdrawn or dismissed, and frequently are settled.  Less than 1 percent actually receive a merit determination from OSHA.

Procedurally, there are important timing differences between an EEOC charge and an 11(c) claim.  An EEOC charge must generally be filed Continue reading