Employer Wellness Programs Need Guidance to Avoid Discrimination: EEOC

Wellness programs are an increasingly common feature of employee benefits programs, and guidance is needed to avoid violations of federal equal employment opportunity laws, a panel of experts representing business, advocacy groups, and providers told the Equal Employment Opportunity Commission (EEOC) at a recent meeting.

“As wellness programs become more prevalent, fostered in part by the signature health care initiative of the Administration, we can be certain that their use will present more questions with respect to the federal laws we enforce,” said EEOC Commissioner Victoria A. Lipnic. “I believe we have a responsibility where possible to let stakeholders know the Commission’s position on these important questions.”

According to EEOC Acting Associate Legal Counsel Christopher Kuczynski, the most common intersection of wellness programs and the statutes EEOC enforces occurs when the programs require medical exams or ask disability-related questions, both of which would ordinarily give rise to a violation of the Americans with Disabilities Act (ADA). Kuczynski explained that, while the ADA allows employers to ask for medical information in connection with voluntary wellness programs, the meaning of “voluntary” merits further clarification by the EEOC.

Incentive programs. Other panelists, including Leslie Silverman, a lawyer representing large employers, urged the EEOC to provide guidance on the application of the ADA and GINA to wellness programs in order to facilitate employer compliance and clarify the relationship between the ADA, Genetic Information Nondiscrimination Act (GINA), the Health Information Portability and Accountability Act (HIPPA), and the Patient Protection and Affordable Care Act (ACA) provisions on incentives and penalties.

The ERISA Industry Committee (ERIC) strongly encouraged the EEOC to adopt guidance making clear that incentive-based workplace wellness programs are permissible in order to allow these programs to expand and succeed. Among ERIC’s key recommendations was for the EEOC to make clear that wellness incentives do not violate the ADA. ERIC’s testimony explained that the ACA and HIPAA permit incentives for voluntary workplace wellness programs, subject to certain limits and other requirements, but the EEOC so far has not embraced this policy. ERIC is concerned that the EEOC might construe a workplace wellness program to be in violation of the ADA even if the program fully complies with the ACA and HIPAA.

Title VII and the ADEA. While most of the panelists discussed wellness programs in the context of ADA or GINA violations, Judith Lichtman of the National Partnership for Women & Families, warned of potential violations of Title VII of the Civil Rights Act’s prohibitions on race, sex, and national origin discrimination, and the Age Discrimination in Employment Act’s (ADEA) prohibitions on discrimination against people 40 and older.

Lichtman noted that women tend to have more health problems than men and older people tend to have more problems than the young. Many health conditions, such as obesity, diabetes, and hypertension, disproportionately affect members of racial minorities. Punitive measures for failing to meet certain biometric markers therefore could have an unjustified disparate impact on certain groups, in violation of both Title VII and the ADEA, she told the EEOC.

GINA. Some panelists also argued that EEOC’s regulations under the GINA, which prohibits acquiring genetic information including family medical history, should provide guidance on whether spouses of employees may be asked for health information in the context of wellness programs.

For more information, visit http://www.eeoc.gov/eeoc/newsroom/release/5-8-13.cfm.

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