EEOC to Offer Employers Guidance on Wellness Programs

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By Eric B. Meyer

The U.S. Equal Employment Opportunity Commission is obsessed with wellness programs.

Or, as the EEOC likes to describe them “‘so-called’ wellness programs.” And not in a “yay, so-called wellness programs are super” kinda way.

No, in recent months, the EEOC has initiated litigation against companies (example, example, example) claiming that they violate the Americans with Disabilities Act (ADA) and the Genetic Information Non-Disclosure Act (GINA) by both requiring medical examination and penalizing employees who decline to participate.

EEOC guidance coming in February 2015

Back in May 2013, one of the panel experts invited to speak at an EEOC public meeting on wellness programs lamented that, while the ADA allows employers to ask for medical information in connection with voluntary wellness programs, the meaning of “voluntary” merits further clarification.

EEOC Commissioner Victoria Lipnic also stressed that the EEOC has a “responsibility where possible to let stakeholders know the Commission’s position on these important questions.”

And Senate Republicans, well, they don’t exactly see eye-to-eye with the EEOC on this issue.

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And so, the EEOC has announced that in February 2015 it will provide wellness-program guidance to employers “to address numerous inquiries EEOC has received about whether an employer that complies with regulations implementing the final Health Insurance Portability and Accountability Act (HIPAA) rules concerning wellness program incentives, as amended by the Affordable Care Act (ACA), will be in compliance with the ADA.”

Will EEOC strike a reasonable balance?

The EEOC believes that its new guidance “will benefit entities covered by title I of the ADA by generally promoting consistency between the ADA and HIPAA, as amended by the ACA, and result in greater predictability and ease of administration,” while imposing “no new or additional risks to employers.”

As former EEOC Chair Jacqueline Berrien recognized at the EEOC’s public meeting in May, there has been “broad, bipartisan support for the expanded use of wellness programs to reduce health insurance and health care costs.” So, hopefully, the EEOC can strike a reasonable balance between the intent of these programs and federal anti-discrimination laws.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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