November 30, 2016
From Financial Advisor Online

Trump Upset May Impact Rules On Wellness Programs

by Juliette Fairley

Although the U.S. Equal Employment Opportunity Commission (EEOC) released rules allowing employers to assess penalties against workers who decline to participate in their health insurance-connected wellness programs, enforcement is in question until the transition between current President Obama and President-elect Donald Trump is complete.

“My sense is that the EEOC will be taking a very different position under the new administration compared to that of President Obama,” said Henry Talavera, an attorney with Polsinelli in Dallas, Texas. “The new regulations will still become final, but it will be interesting to see how and whether they will be enforced. We recommend compliance with the EEOC rules pending further developments, which I believe should be forthcoming soon.”

Health assessments and questionnaires could potentially violate rights to medical privacy and increase the risk of discrimination based on pre-existing medical conditions, for example.

“It's troubling, even without regard to the EEOC, that an employer could condition any participation in a group health plan on an employee’s participation in a wellness program, for example, completely bar participation in a medical plan if a biometric screening is not completed,” Talavera said.

Although it appears innocent to participate in wellness programs that might require workers to exercise daily, the danger is the potential for employers to use the wellness plan to identify and terminate workers who might increase the company’s health-care costs and get rid of them.

“Biometric screenings are generally impermissible and so are blood tests as a condition of participation in a health plan, but since that wasn't clear and it was uncertain if the EEOC had any ability to regulate this issue, the government proposed these new rules in response to adverse rulings in at least one court case,” Talavera said.

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