Sample Notice for Wellness Programs and New Retaliation Guidance

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By:  Claudia D. Orr

 

Our friends at the Equal Employment Opportunity Commission (“EEOC”) have been busy with providing employers with tools to ensure compliance.

            Let’s begin with wellness programs.  Employers sponsor wellness programs to incentivize employees to take positive steps to improve their overall health (for example, smoking cessation, fitness programs, healthier food choices, etc.). A healthier workforce is generally more productive and less expensive.  Typically, the employee is required to provide certain medical/health information and there is a financial incentive attached.   

            The EEOC’s concern, of course, is the potential for an employer to improperly use the health information of its employees in violation of the Americans with Disabilities Act. Perhaps of greater concern is the employee’s fear that the information might be improperly used and the resultant unwillingness to participate and/or provide accurate information. 

            The EEOC’s solution is to publish a sample “Notice Regarding Wellness Program” which explains “what information will be collected, how it will be used, who will receive it, and what will be done to keep it confidential.”  To review or download a copy of the sample notice, click here: https://www.eeoc.gov/laws/regulations/ada-wellness-notice.cfm.

            The EEOC is also concerned about retaliation against employees who exercise their rights under civil rights laws since retaliation is now the most frequently asserted claim.  “For example, it is unlawful to retaliate against applicants or employees for:

  • filing or being a witness in an EEO charge, complaint, investigation, or lawsuit
  • communicating with a supervisor or manager about employment discrimination, including harassment
  • answering questions during an employer investigation of alleged harassment
  • refusing to follow orders that would result in discrimination
  • resisting sexual advances, or intervening to protect others
  • requesting accommodation of a disability or for a religious practice
  • asking managers or co-workers about salary information to uncover potentially discriminatory wages.

Participating in a complaint process is protected from retaliation under all circumstances. Other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe it.”

            The EEOC recommends that employers have a clear policy that prohibits retaliation and provides for training for all managers, supervisors and employees on the topic.  For further guidance from the EEOC, click here:  https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm.

            Remember that the EEOC’s guidance can be fairly far reaching and not necessarily the most practical advice for an employer.  Thus, it is always advised that you seek legal advice from an experienced employment attorney, such as the author.

This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM).  She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For more information go to: http://www.plunkettcooney.com/people-105.html.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. October 2016.