Today’s News & Commentary — May 18, 2016

Today, everybody is buzzing about the new overtime eligibility rule announced by President Obama on Tuesday.  According to the New York Times, the Labor Department is expected to issue a new regulation on Wednesday making all workers that earn salaries up to $47,476/year eligible to receive time-and-a-half overpay for hours over the 40/hour workweek.  That’s more than double the current threshold ($23,660) and when it goes ito effect on December 1, millions of formerly uncovered salaried employees will begin to receive overtime.  Vice President Biden Jr., who is traveling to Ohio on Wednesday to promote the new rules, said this is part of Obama’s plan to ensure that middle-class workers are treated fairly.  Republican lawmakers have vowed to block the effort during a mandated congressional review period.

The Equal Employment Opportunity Commission has released its final rules regarding the applicability of both the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA) to employer wellness programs, per JDSupra.  The final rule revising the regulations clarifies how the programs fit together with the Affordable Care Act (ACA).  The rule revising ADA regulations lays out the criteria that a wellness program must meet in order to be considered voluntary under the ADA, and thus fall under an exception allowing voluntary medical examinations and inquiries as part of an employee health plan. The rule also allows employers to use “incentives” in the form of rewards or penalties to encourage participation in such programs, but limits such incentives to 30% of the cost of the employer’s and employee’s contributions toward coverage.  In addition to this revision, the EEOC further specified that wellness programs “must have a reasonable chance of improving health or preventing disease, not be overly burdensome, not allow for employment discrimination, and not employ a suspect method to meet its health promotion obligations.”  Finally, the EEOC tried to clarify when an employer can offer incentives to promote participation in a wellness program without violating GINA since, historically, GINA has been understood to restrict wellness programs from requiring employees to provide genetic information in order to receive an incentive.  The revisions make clear that this interpretation does not apply to the spouses of employees.  With respect to spouses, employers can request genetic information and the final rule allows for financial or “in-kind” rewards (not to exceed the 30% cap) in exchange for an employee’s spouse providing current or past health status information or undergoing a medical exam.