Wyatt Employment Law Report


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The EEOC’s New Proposed Rule: Long-Awaited Workplace Wellness Regulations

By Leila G. O’Carra

Last year, the EEOC sued three different employers (Honeywell, Orion and Flambeau),1 claiming that the companies’ workplace wellness programs violated the Americans with Disabilities Act. Except for the EEOC’s court papers in these cases, employers have had little guidance on the ADA’s requirements for wellness programs. On April 20, 2015, the EEOC finally revealed its position.

worksite wellnessThe EEOC’s proposed rule applies to employers with 15 or more employees that offer workplace wellness programs that include disability-related inquiries or medical exams. According to the proposed rule, covered wellness programs must be reasonably designed to promote health or prevent disease. Further, covered wellness programs must be voluntary. That is, the employer: (1) may not require employees to participate; (2) may not deny coverage under any of its group health plans for non-participation (or limit benefits except as specifically allowed in the regulation); (3) may not take adverse employment action or retaliate against employees who do not participate; and (4) if the program is part of a group health plan, must provide a detailed notice with information about the program. The notice must be reasonably likely to be understood by Continue reading


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HHS Issues Guidance Regarding Same-Sex Marriages and HIPAA

By Margaret Y. Levi

The U.S. Department of Health and Human Services Office for Civil Rights (“OCR”) has issued guidance concerning how the U.S. Supreme Court’s decision recognizing same-sex marriages may affect certain provisions relating to “family members” in the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule.

The HIPAA Privacy Rule recognizes that spouses, dependents and other family members often need access to information about patients in order to participate in their care as well as have privacy rights of their own regarding genetic information. The definition of family member under the HIPAA Privacy Rule includes the terms “spouse” and “marriage” but does not further define those terms.

In United States v. Windsor, the Supreme Court held as unconstitutional the section of the Defense of Marriage Act (“DOMA”) that excludes a same-sex partner from the definition of “spouse.” In light of the Windsor ruling, OCR advises health care providers and insurance companies (and business associates, as applicable) that the term “family member” in the HIPAA Privacy Rule will include same-sex spouses who are lawfully married, whether or not the state in which they live or get services recognizes same-sex marriages, as well as their dependents. OCR points out that this affects two standards under HIPAA:

  • Standard: Uses and disclosures for involvement in the individual’s care and notification purposes. Under certain circumstances, covered entities are permitted to share an individual’s protected health information with a family member of the individual. Legally married same-sex spouses, regardless of where they live, are family members for the purposes of applying this provision. See 45 C.F.R. § 164.510(b).
  • Standard: Use and disclosure of genetic information for underwriting purposes. This provision prohibits health plans, other than issuers of long-term care policies, from using or disclosing genetic information for underwriting purposes. For example, such plans may not use information regarding the genetic tests of a family member of the individual, or the manifestation of a disease or disorder in a family member of the individual, in making underwriting decisions about the individual. This includes the genetic tests of a same-sex spouse of the individual, or the manifestation of a disease or disorder in the same-sex spouse of the individual. See 45 C.F.R. § 164.502(a)(5)(i).

OCR has announced it will also issue additional guidance or regulations to address same-sex spouses as personal representatives under the HIPAA Privacy Rule.