Sample Notice for Wellness Programs and New Retaliation Guidance

The Equal Employment Opportunity Commission (“EEOC”) has been busy creating new tools for employers 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 (i.e., 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.

The EEOC is also concerned about retaliation against employees who exercise their rights under civil rights laws, because 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.

Remember that the EEOC’s guidance can be fairly far reaching and not necessarily the most practical advice for an employer. Therefore, it is always advised that you seek legal advice.

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