EEOC Meeting Explores Wellness Programs' Evolution

As safety and HR professionals know, they're an increasingly common feature of employee benefits programs. The board's experts believe employers need guidance to avoid violating anti-discrimination laws.

The Equal Employment Opportunity Commission held a meeting May 8 to examine the use and potential misuse of employee wellness programs. Experts who participated said U.S. employers need guidance to avoid violating anti-discrimination laws, according to the board's news release about the meeting.

"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 insuring that those programs are designed and implemented in a manner that is consistent with federal equal employment opportunity laws."

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

Karen Pollitz of the Kaiser Family Foundation reports 94 percent of employers with more than 200 workers and 63 percent of smaller ones offer some kind of wellness program; many of them offer some sort of financial incentive for participation, ranging from gift cards to higher employer contributions for insurance premiums, or penalties such as surcharges to employees for health insurance.

EEOC Acting Associate Legal Counsel Christopher Kuczynski told the commissioners that the most common intersection of these programs with the laws 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. He said while the ADA allows employers to ask for medical information in connection with voluntary wellness programs, the commission should further clarify the meaning of "voluntary." In addition, some panelists at the meeting said EEOC's regulations under the Genetic Information Nondiscrimination Act, which bars 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.

A representative of the Consortium of Citizens with Disabilities, Jennifer Mathis, warned against using penalties or financial incentives for participation in wellness programs. She cited the high rate of unemployment for people with disabilities and said the consortium "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."

The commission will hold open the Wellness Commission meeting record for 15 days and invites written public comments on any issues 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 emailed to [email protected].

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