Wellness Programs Need Guidance to Avoid Discrimination

May 9, 2013 (PLANSPONSOR.com) – Guidance is needed for employer wellness programs so that they can avoid violations of federal equal employment opportunity laws, a panel of experts told the Equal Employment Opportunity Commission (EEOC).

With wellness programs becoming an increasingly common feature of employee benefits programs (see “Most Employers Use Wellness Incentives, Disincentives”), a panel of experts representing business, advocacy groups and providers told the EEOC that such guidance is necessary.

“We appreciate the valuable insights and diverse perspectives provided by today’s panelists,” said EEOC Chair Jacqueline A. Berrien. “There has been broad, bipartisan support for the expanded use of wellness programs to reduce health insurance and health care costs, but today’s meeting underscored the importance of ensuring that those programs are designed and implemented in a manner that is consistent with federal equal employment opportunity laws.”

Commissioner Victoria A. Lipnic added, “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. I believe we have a responsibility where possible to let stakeholders know the commission’s position on these important questions.”

A majority of employers now offer some sort of wellness program—94% of employers with over 200 workers and 63% of smaller ones, according to Karen Pollitz of the Kaiser Family Foundation. Pollitz added that many of these programs offer some sort of financial incentive for participation, which can range from gift cards to higher employer contributions for insurance premiums, or penalties like additional surcharges to employees for health insurance.

The most common intersection of these 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), EEOC Acting Associate Legal Counsel Christopher Kuczynski told the commission. He 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 commission.

Some panelists also argued that EEOC's regulations under the Genetic Information Nondiscrimination Act (GINA)—which prohibits the acquisition of 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.

Jennifer Mathis of the Consortium of Citizens with Disabilities (CCD) warned against the use of penalties or monetary incentives for participation in wellness programs. Citing the high rate of unemployment for people with disabilities, Mathis told the commission that the CCD is “concerned that employer-based health programs which penalize people with disabilities for not being as 'well' as others—and for failing to disclose disability-related information the ADA permits them to keep confidential—make it even more difficult for individuals with disabilities to obtain employment on fair and equal terms."

Other panelists, including Leslie Silverman, a former EEOC commissioner, urged the commission 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, GINA, the Health Information Portability and Accountability Act (HIPPA) and the Affordable Care Act (ACA) provisions on incentives and penalties.

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

The Commission will hold open the Wellness Commission meeting record for 15 days, and invites members of the public, to submit written comments on any issues or matters discussed at the meeting. Public comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, N.E., Washington, D.C. 20507, or e-mailed to: Commissionmeetingcomments@eeoc.gov.

Comments submitted by the public will be made available to members of the Commission and to Commission staff working on the matters discussed at the meeting. In addition, those comments may be publicly disclosed on the EEOC's public website, in response to Freedom of Information Act requests, or in the Commission's library. Persons submitting comments in response to this solicitation are consenting to their use and consideration by the Commission and to their public dissemination. Accordingly, they should not include any information that persons would not want made public, such as home address, telephone number, etc. Note that when comments are submitted by e-mail, the sender's e-mail address automatically appears on the message.

More information about the EEOC, including panelists' statements, biographies and a transcript of this meeting, can be found on the EEOC website at http://www.eeoc.gov.