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|EEOC Proposed Regs Require a Gut Check for Wellness Programs (PDF)|
Alston & Bird LLP
May 12, 2015
"The EEOC stated in Footnote 24 of the proposed regulations that it 'does not believe' that the bona fide benefit plan safe harbor 'is the proper basis for finding wellness program incentives permissible.' ... With this shot across the bow, the EEOC has made it clear that it does not agree with courts -- such as the court in [Seff v. Broward County] -- that have applied the bona fide benefit plan safe harbor to incentive-based wellness programs. How a court would weigh this guidance, in view of contrary precedent in some federal circuits, remains to be seen. What is clear, however, is that the EEOC has not ceded the litigation position taken in Seff and Honeywell."
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