BRT Letter in Response to EEOC Actions Targeting Employer Wellness Programs
Nov 14,2014 - Business Roundtable
Dear Secretaries Burwell, Lew, and Perez:
I am writing on behalf of the Business Roundtable to express my strong
disappointment with the efforts of the United States Equal Employment
Opportunity Commission (EEOC) to take actions against large employers who are
complying with the requirements of the Patient Protection and Affordable Care
Act, Pub. L. 111-148, and the Health Care and Education Reconciliation Act, Pub.
L. 111-152 (collectively, the ACA). In particular, the EEOC has targeted
employers by filing lawsuits against employers that have established ACA
compliant wellness programs, undermining both the statutory provisions of the
ACA that expressly permit employers to establish wellness programs
(ACA 1201 (establishing Public Health Service Act (PHS Act) 2705) (42
U.S.C. 300gg–4)) and the regulations promulgated by your Departments to
implement such provisions[1]. I am writing to ask that you personally engage on
this matter to defend the ACA and thwart all future inappropriate actions
against employers who are complying with these provisions.
Wellness programs empower employees to take control of their
health. When employers establish wellness programs expressly authorized
under PHS Act 2705 and the implementing regulations, they do so for many
reasons. First and foremost, these programs educate employees on their
existing health risk factors. These programs then provide employees
with motivating incentives that encourage them to take action towards improving
health risk factors that may result in longer term health problems.
Understanding certain health risk factors – such as cholesterol levels, high
blood pressure, and blood sugar (i.e., diabetes risk) – allows an employee to
take full advantage of their employer sponsored health insurance coverage and
access the resources necessary to improve their health. Empowering
employees with the knowledge of their health status, with the health care tools,
and with the support system needed to improve their wellbeing, is the right
thing to do.
The deadline is rapidly approaching for most employers to begin offering
health insurance coverage to their full-time employees if they do not already do
so. For many employers, wellness programs are playing and will play an
integral part in the benefits design of such coverage offerings. If
employers believe that complying with the letter of the law can still result in
enforcement actions, it will send a chilling effect across the country.
Allowing the EEOC to act in contravention to the positive provision of the ACA
without reproach from the Departments charged with governing and overseeing
these programs will send a message to employers that certain ACA provisions are
interpretative only and remain subject to litigation. It is a shameful day
when well-intentioned and well-informed reliance on regulations, driven by the
good will of employers to offer positive, innovative programs to their
employees, can result in litigation.
I appreciate, in advance, your work to address this issue.
Employer-sponsored coverage is a valued benefit that over 40 million Americans
receive through Business Roundtable members. We do not want to see the
kinds of actions taken by the EEOC undermine law and negate the benefits of
these plans.
Sincerely,
John Engler
[1] Incentives for
Nondiscriminatory Wellness Programs in Group Health Plans, 78 Fed. Reg. 33,158
(Jun. 3, 2013) (to be codified at 26 C.F.R. pt. 54, 29 C.F.R. pt. 2590, and 45
C.F.R. pts. 146 and 147).