Experts Ask EEOC for Wellness Guidance

The Equal Employment Opportunity Commission (EEOC) needs to clarify how anti-discrimination laws impact employee wellness programs, a panel of experts told the agency at a recent meeting.

A majority of employers now offer some sort of wellness program: 94% of employers with over 200 employees and 63% of smaller ones: and some businesses have been saying they need additional guidance to ensure these programs don’t run afoul of discrimination laws. The panel included management lawyers, employee advocacy groups, and health care and benefits experts.

The most common intersection of these programs and the statutes the 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), an attorney for the EEOC told meeting participants. The lawyer 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 from the EEOC.

Other panelists:

• Argued that the EEOC’s regulations under the Genetic Information Nondiscrimination Act (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
• Warned against the use of penalties or monetary incentives for participation in wellness programs, saying they might penalize employees with disabilities for not being as “well” as others or for failing to disclose disability-related information the ADA permits them to keep confidential
• Urged the Commission to provide guidance on the relationship between the ADA, GINA, the Health Information Portability and Accountability Act (HIPAA), 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, one expert warned of potential violations of Title VII of the Civil Rights Act’s prohibitions on sex, race, and national origin discrimination and the Age Discrimination in Employment Act’s (ADEA) prohibitions on discrimination against people 40 and older.

She 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 a disparate impact on certain groups, in violation of both Title VII and the ADEA, she told the Commission.

The EEOC will be reviewing comments from the public on issues discussed at the meeting.

Meeting transcript