A majority of US employers offer some sort of wellness program designed to reduce the cost of health insurance and healthcare costs, and to improve the health and well-being of employees. However, unless care is taken, even well-intentioned wellness programs may violate federal law.
Employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors to covered employers, must comply with the Family and Medical Leave Act (“FMLA”). The FMLA requires covered employers to comply with various notification requirements, and allows employers to obtain medical certifications from employees requesting leave. The Department of Labor (“DOL”) has authored various form notices and certifications, which employers may choose to use.
The DOL-drafted forms expire on January 31, 2012. New forms, which have been submitted to the United States Office of Management and Budget, are not likely to be approved before the old forms expire. Nevertheless, under the law, expired forms may continue to be used while new forms are awaiting approval.
But – and this is important – the soon-to-expire forms do not include the “safe harbor” language under the Genetic Information Nondiscrimination Act, which tells employees and their medical providers that they should not provide “genetic information” when responding to a request for certification.
The EEOC recently published an informal discussion letter, outlining its perspective on the impact of the Genetic Information Nondiscrimination Act (GINA) on employer-sponsored workplace wellness programs. More specifically, the letter discussed how and to what extent employers may offer incentives to employees to participate in wellness programs without violating GINA.