On May 8, 2013, The Equal Employment Opportunity Commission (EEOC) held a public meeting that addressed the interaction between employer-sponsored wellness programs and federal equal employment opportunity statutes enforced by the EEOC. Commissioners Constance Barker, Victoria Lipnic, Chai Feldblum, and Commission Chair Jacqueline Berrien were present and joined by seven panelists representing business, advocacy groups and providers. Opening statements by Commissioners Barker, Lipnic, and Feldblum all noted the increased attention that that the nation’s collective health and employer-sponsored wellness programs have received in recent years. Commissioner Barker further noted that the Commission’s focus is on ensuring that groups protected by federal employment laws receive equal access to wellness programs and are permitted to enjoy the rewards offered for choosing those programs.

The Affordable Care Act (ACA) includes provisions designed to encourage the use and effectiveness of wellness programs. However, uncertainty surrounding the treatment of wellness programs under the Americans with Disabilities Act (ADA) and restrictions imposed by regulations issued under the Genetic Information Nondiscrimination Act (GINA) may have the opposite effect. The uncertainty centers on whether the use of financial incentives, in the EEOC’s view, renders a wellness program “involuntary.”

As Christopher Kuczynski, EEOC Acting Associate Legal Counsel, stated in his testimony:

The statute, the legislative history, and EEOC's ADA regulations do not elaborate on the meaning of the word "voluntary." However, EEOC's Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) (Employee Inquiry Guidance) explains that where a wellness program includes disability-related questions and/or requires medical examinations, the program must be voluntary, and that "voluntary" means that the employer neither requires participation in the program, nor penalizes employees who do not participate. The guidance says nothing directly about wellness program incentives and their impact on voluntariness. At the time the guidance was issued, financial incentives were not a feature of most wellness programs.

With financial incentives now a key component of many wellness programs, this question remains unanswered.

Commissioner Feldblum’s opening statement acknowledged that employers and their employees deserve clarity regarding the relationship between wellness programs and federal employment laws and suggested that the Commission could provide such clarity by addressing questions such as:

1. What accommodations are required for disabled employees who participate in wellness programs?
2. When is a medical examination or inquiry part of an employee health program?
3. When is a program-related medical exam or inquiry “voluntary,” and therefore permissible under the ADA?

In her opening statement, Commissioner Lipnic pointed out that wellness programs implicate many statutes enforced by the EEOC, including the ADA, GINA, Title VII, the Age Discrimination in Employment Act (ADEA), and possibly other statutes; and that the Commission’s duty is to articulate a position on this topic with enough clarity to ensure that stakeholders are on “sure footing.” Relevant questions include:

1. Does a wellness program’s compliance with the Health Insurance Portability and Accountability Act (HIPAA) satisfy EEO requirements?
2. When is a program “voluntary”?
3. If financial incentives comply with HIPAA, are they “voluntary” under the ADA?
4. Does it matter whether the incentive is a carrot or reward versus a stick or penalty?
5. How do standards for voluntary wellness programs under GINA relate to standards under the ADA?

Commissioner Lipnic emphasized that the purpose of the meeting was educational, and not indicative of whether the Commission will issue guidance on any of the topics discussed.

After brief statements by each of the panelists, the Commissioners asked several rounds of questions, including the following:

Commissioner Barker requested that several panelists submit language after the meeting to help the Commission define voluntariness in the context of wellness plans. Commissioner Barker then asked if the panelists had any response to the statement of Judith Lichtman of the National Partnership for Women & Families regarding the potential disparate impact that wellness programs had on groups protected by civil rights laws, by imposing higher costs and withholding rewards because of health problems that disproportionately affect these groups. One panelist agreed that health care programs should not be punitive, stated that she did not believe that a “voluntary” wellness program necessarily prohibits all incentives, and offered to work with the Commission to determine which incentives should be deemed impermissibly coercive. Another panelist pointed out that wellness programs do not work well without health assessments, and that a blanket prohibition of incentives would be at odds with other initiatives implemented by the current Administration.

Commissioner Feldblum asked each panelist to address whether employee participation in cholesterol and blood sugar screening is a voluntary medical examination if: 1) screening is simply offered for free with no other incentive or penalty; 2) failure to participate in screening resulted in termination; 3) employees received a Starbucks gift card for participating; 4) employees received a $100 credit on their $300 monthly health care premium if they participated, or a $100 surcharge if not. All of the panelists agreed that scenarios 1 and 3 were voluntary medical examinations and that scenario 2 was not. The panelists disagreed on whether scenario 4 represented a voluntary medical examination.

Commissioner Lipnic asked if there was any real difference between the reasonable alternative standard under the Health Insurance Portability and Accountability Act (HIPAA) and the reasonableness standard under the ADA. Several panelists agreed that the two standards are similar enough to address the concerns presented by the Commission.

Commissioner Barker expressed concern that soon, both the Affordable Care Act (ACA) and HIPAA will use 30% of the cost of coverage as a benchmark for the maximum allowable amount of health-based incentives, and that the Commission should not create an arbitrary maximum allowance. She then asked the panelists if an employer complies with relevant EEO laws if it complies with HIPAA’s guidelines on maximum incentives. Three panelists answered “yes” and three answered no. Two of the panelists who answered “no” pointed out that while the 30% standard will soon exist under the ACA and HIPAA, HIPAA does not address voluntariness and therefore is not completely analogous to the Commission’s efforts regarding wellness programs.

Other questions raised by the Commissioners included whether the ADA limits the type of voluntary inquiries employers are allowed to ask, whether the concept addressed in the preamble to HIPAA’s 2006 Enforcement Rule is the same as “voluntariness,” how to ensure that sensitive information remains confidential and wellness programs remain affordable, whether the ACA encourages collection of medical information in the aggregate, and whether the ADA’s protection against the misuse of medical information is sufficient to address discrimination concerns.

Although the Commission did not clearly state what position, if any, it would take with respect to wellness programs under the ADA, the testimony of Acting Associate Legal Counsel Kuczynski was telling. He concluded that:

Guidance from the Commission will promote both uniformity in the handling of charges alleging violations of the ADA with respect to wellness programs, and voluntary compliance to prevent discrimination from occurring in the first place.

More information on the EEOC meeting, including written statements of the panelists and Commissioners, can be found here.

Photo credit: ODonnell Photograf