The Equal Employment Opportunity Commission Issues A Proposal to Ensure Employer Wellness Programs Coherence With Title I of the Americans With Disabilities Act

Yarelyn Mena and Edgar M. Rivera, Esq.

On April 20, 2015, the Equal Employment Opportunity Commission (EEOC) issued a notice of proposed rulemaking (NPRM) addressing employer wellness programs that are part of a group health plan and its relation to Title I of the Americans with Disabilities Act (ADA).

A wellness programs is an employee health program that “is reasonably designed to promote health or prevent disease.” Many employers offer wellness programs in the form of programs and activities, typically through employer-provided health plans, to maintain and improve employee health as well as to reduce health care costs. While some wellness programs only ask employees to engage in healthier behavior, such as by encouraging exercise or quitting smoking, legal issues arise when a wellness programs seeks employees’ medical information, require employees complete a health risk assessment, or require employees undergo screening for health risk factors.

Title I of the ADA prohibits employers from discriminating against qualified employees with disabilities. The possibility of disability discrimination increases where employers have access to employees’ medical records or information, which can be obtained as part of a voluntary wellness program. Although Title I generally prohibits employers from collecting medical information about its employees, an employer may do so if the information collected is used to provide feedback to that employee about potential health risk factors or to design a targeted program with specific aims to prevent a prevalent condition at the workplace. An employer may collect such information as part of a “voluntary” wellness program. A wellness program is voluntary where it does not mandate employee participation, deny or limit health coverage under its health plans for non-participation, or retaliate against an employee for failing to participate or achieve health goals.

Employers may be incentivized to increase employee participation when health care costs would be greatly reduced. In light og this, the NPRM limits employer incentives to a maximum of thirty (30) percent of the cost of employee-only coverage. Additionally, for a health program to be considered a wellness program, an employer must disseminate notices to its employees regarding how medical information will be collected, how it will be used, who will look at the information, and any restrictions on disclosure.

Penalties for not engaging in a wellness program can have a discriminatory effect on protected categories other than disabled employees. For example, employees in lower paying jobs may have less time to participate in activities. Employers would be disproportionally penalizing those employees in lower paying positions, which could unfairly favor one race over another. The EEOC’s NPRM attempts to clarify vague and/or non-existent rules surrounding wellness programs for the benefit of all employees.

If you have felt discriminated against for your disability at work, please contact The Harman Firm, LLP.