The EEOC, DOL and OFCCP Announce Deadlines for Final Rules

I – The EEOC says that it will issue its final “wellness” rules by February, 2016

The Equal Employment Opportunity Commission (EEOC) indicated in its November regulatory agenda that it plans to finalize two rules governing employer wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA) by February 2016.

As you may recall, one of these proposed rules will amend the EEOC’s ADA regulations to address the interaction between Title I of the ADA and the financial inducements that are commonly contained in wellness programs offered through employer health plans. This will have the effect of limiting how much of a financial benefit employers can offer to their employees to join such wellness programs.

The other final rule will amend the GINA regulations to address inducements to employees’ spouses or other family members who respond to questions about their current or past medical conditions on employer HRAs. The proposed regulation would also correct a typographical error in the rule’s discussion of wellness programs and add references to the Affordable Care Act, as appropriate. The need to revise the regulation at 29 CFR 1635.8 stems from the numerous inquiries that the EEOC says it has received about whether an employer will violate GINA by offering an employee a financial inducement if the employee’s family member completes a HRA that asks about the family member’s current health status.

II – The DOL plans to issue the final rules increasing FLSA salary requirements in July

According to its 2015 semiannual regulatory agenda, it appears as if the U.S. Department of Labor has set July of 2016 as the target date for its release of the final rules increasing the minimum salary necessary to qualify for a white collar exemption. However, as we have seen in the past, the DOL does not feel compelled to meet its own deadlines, and it often issues final rules long after they were initially expected. Bottom line, expect the final rules sometime in late 2016.

III – Expect the OFCCP’s final compensation rule in May of 2016

The OFFCP has indicated that it plans to issue its final rules requiring federal contractors and subcontractors to submit electronic pay data in May of 2016. There is not currently any obligation for contractors to submit pay data to OFCCP unless they are undergoing an affirmative action compliance review.

The final rule will probably require contractors with 100 or more employees and federal contracts or subcontracts totaling $50,000 or more to submit to summary compensation data by race, ethnicity and sex annually. The data will be published on OFCCP’s website and available to the public.

The OFCCP has already missed two other self-imposed deadlines, so employers should not be surprised if they also miss the May, 2016 deadline.

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