By:      Kara M. Maciel

The EEOC is holding a public meeting tomorrow, May 8, 2013, to discuss wellness programs and how the EEOC should interpret them under the ADA, GINA and other laws. This is welcome news to the employer community, who has been left without any guidance from the agency since 2000 as to how it will enforce wellness programs. The uncertainty generated by this lack of guidance has hampered businesses from implementing, or expanding, effective wellness programs.   

As we have explained in previous articles, the EEOC regulations, and the EEOC’s Interpretive and Enforcement Guidance permit employers to conduct voluntary medical examinations, including voluntary medical histories, as part of a voluntary employee wellness program. In a formal 2000 Guidance, the EEOC stated that "[a] wellness program is ‘voluntary’ as long as an employer neither requires participation nor penalizes employees who do not participate." 

The employer community has long awaited guidance from the EEOC on the nature and extent of incentives it can offer in wellness plans.  Specifically, key questions that the agency has refused to address are (i) whether and to what extent a reward or incentive mandates participation in the program, or (ii) whether the withholding of the incentive for not participating constitutes a penalty, thereby making the wellness program involuntary. In a letter issued earlier this year, the EEOC did not take a position on this key question, and employers are hopeful the May 8 public meeting will begin the process towards meaningful EEOC guidance.

Wellness programs are becoming increasingly popular with employers as they struggle with rising health care costs and looking for ways to incentivize their workforce to adopt a healthier lifestyle. In recent years, wellness programs have received a renewed focus as a result of the Affordable Care Act which provides new incentives and increased flexibility

There are legal implications, however, if wellness programs are not established correctly that could run afoul of federal discrimination and state privacy issues. Under the ADA, employers are prohibited from asking disability-related questions or conducting medical examinations unless the inquiry is job related and consistent with business necessity. Generally a Health Risk Assessment (HRA) does not meet this standard. The ADA, however, does allow voluntary medical exams or inquiries as part of an employee health program at work. Employers also must provide reasonable accommodations, absent undue hardship, to those individuals who are unable to meet the health outcomes or engage in specific activities due to a disability. Under GINA, wellness programs that provide rewards for completing a HRA requiring disclosure of genetic information (including family medical history) is unlawful, even if the incentives are not based on the outcome of the assessment and regardless of the amount of the incentive. 

To date, the key to the EEOC’s guidance on wellness programs under both the ADA and GINA has been that any participation in the program or disclosure of health information must be voluntary. Hopefully, after tomorrow’s public meeting, the EEOC will provide clarity to employers that incentivize wide participation by individuals in effective workplace wellness programs.