EEOC to Take Closer Look at Employer Wellness Programs
Date:5.9.2013 - Jackson Lewis LLP
The Equal Employment Opportunity Commission has heard testimony from a panel
consisting of representatives of the business community, advocacy groups and
providers on the treatment of employer-sponsored wellness programs under federal
equal employment opportunity (EEO) laws. According to the EEOCfs press release, issued after the May 8, 2013, meeting,
gWellness programs are an increasingly common feature of employee benefits
programs.h Yet unanswered questions on the interplay of federal
antidiscrimination laws enforced by the EEOC and other laws impacting wellness
programs can make employer compliance a complex undertaking. The EEOCfs meeting
appears to indicate the Commission will examine carefully rules governing
wellness programs.
Programs are Increasingly Prevalent
According to EEOC Chair Jacqueline A. Berrien, gThere has been broad,
bipartisan support for the expanded use of wellness programs to reduce health
insurance and healthcare costsc.h In fact, one of the panelists stated that 94
percent of employers with more than 200 workers and 63 percent of smaller
employers offer some type of wellness program. Generally, these programs are
designed to encourage employees to take preventive measures, through education,
risk assessment or screening, or behavioral modification, to avert the onset or
worsening of a medical condition.
As the panelists explained, many programs use financial incentives to
motivate participation. They distinguished between those providing rewards or
penalties based on participation only (sometimes referred to as gparticipation
incentivesh) and those focusing on outcomes (sometimes referred to as
gattainment incentivesh or goutcome-based programsh).
Testimony Highlights Complexities
One key take-away from the meeting is that wellness programs (which face
significant resistance from a number of advocacy groups) could be challenged
under a number of federal statutes, as the law is complex and evolving. The
Americans with Disabilities Act (ADA), the Genetic Information
Non-Discrimination Act of 2008 (GINA), Title VII of the Civil Rights Act of 1964
(Title VII), the Age Discrimination in Employment Act (ADEA), the Equal Pay Act
(EPA), Health Insurance Portability and Accountability Act (HIPAA), the
Affordable Care Act (ACA), and Sections 503 and 504 of the Rehabilitation Act
were highlighted at the meeting. Some participants in the meeting criticized
both private and public employers for having wellness programs that could
violate these laws.
The ADA, for example, prohibits medical inquiries unless they are gvoluntaryh
and gpart of an employee health program available to employees at that work
sitec.h According to the EEOCfs 2000 Enforcement Guidance on Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans with Disabilities Act (ADA),
gA wellness program is evoluntaryf as long as an employer neither requires
participation nor penalizes employees who do not participate.h In an informal letter issued earlier this year, the EEOC added
that it ghas not taken a position on whether and to what extent a reward amounts
to a requirement to participate, or whether withholding of the award from
non-participants constitutes a penalty, thus rendering the program
involuntary.h
There also are limitations on wellness programs in HIPAA. Any reward offered
in connection with an goutcome-basedh wellness program generally cannot exceed
20 percent of the cost of employee-only coverage under the plan. This will
increase to 30 percent (and can be as high as 50 percent, as determined by
certain federal agencies) as a result of the Affordable Care Act. The EEOC has
not adopted a clear-cut standard for determining when a wellness program is
voluntary.
There are questions raised under GINA, Title VII and other EEO laws also.
Panelists urged the EEOC, for example, to provide guidance on whether employers
could request health information about an employeefs spouse in the context of
wellness programs without running afoul of GINA.
Substantial Resistance to Wellness Programs
Judith Lichtman, Senior Advisor, National Partnership for Women and Families,
emphasized that some advocates are pushing the EEOC to challenge employer
wellness programs under Title VII, by using systemic litigation, among other
means. According to Ms. Lichtman, there could be disparities in employee
contributions to health care may have a disparate impact based on gender, race,
age or disability. Certain health conditions, such as obesity, diabetes and
hypertension, Ms. Lichtman said, disproportionately affect members of racial
minorities; other health conditions, she said, disproportionately affect women
or older individuals.
* * *
Employers have been hoping for some time that the EEOC would clarify its
position under the ADA on when a wellness program is voluntary. Even if the EEOC
does this, wellness programs still may face resistance from advocacy groups
looking to challenge these programs under other EEO laws.
gMany employers are convinced financial incentives make a real difference in
wellness program participation and that tying rewards to outcomes is critical to
changing behaviors that enhance health and productivity,h said Frank
Alvarez, National Coordinator of Jackson Lewisf Disability, Leave & Health
Management Practice. He continued, gEmployers need to understand that these
programs are under attack and there is a movement afoot to further regulate,
limit or eliminate their use. We saw this in the proposed wellness regulations
issued last December under the Affordable Care Act; now we are seeing a major
push for EEOC rules that could kill outcome-based wellness programs. Ironically,
this push seems to be at odds with what Congress and the White House did when
they expanded the use of financial incentives for wellness programs under the
Affordable Care Act.h
In the meantime, employers ensure their wellness programs comply with clear
legal requirements, such as those outlined by HIPAA and the ACA.
The Commission has invited the public to submit written comments on any of
the issues raised at the meeting. Employers may want to take this opportunity to
tell the EEOC why they believe these programs are important to the efficient
operation of their businesses. Comments will be accepted until May 23.
Additional information about the meeting, including the panelistsf testimony,
can be accessed here.
Jackson Lewis has extensive experience advising clients with respect to all
types of wellness programs. For additional information, please contact Frank
Alvarez, AlvarezF@jacksonlewis.com, or Joseph Lazzarotti,
LazzaroJ@jacksonlewis.com, who lead the Firmfs efforts to assist employers in
the design and implementation of wellness programs that comply with federal and
state laws.
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