Many employers are offering wellness programs to employees in connection with their health plans and are aware of the HIPAA regulations that govern such programs. Although employers design their wellness programs to conform to the HIPAA guidance, they sometimes forget that the Americans with Disabilities Act (ADA) might also affect the wellness program.
Employers covered by the ADA may not make medical inquiries of their employees except under certain circumstances and must offer reasonable accommodations to employees who are disabled. One exception to the prohibition on medical inquiries is voluntary participation in a wellness program. In an informal discussion letter, the Equal Employment Opportunity Commission (EEOC), which enforces the ADA, recently applied ADA concepts to a wellness program.
Under the program described in the letter, employees with certain adverse health conditions, such as diabetes, could voluntarily enter the wellness program. If the employee met certain requirements, such as enrollment in a disease management program or adherence to a doctor’s exercise and medication recommendations, the employee’s reward would be reduced or eliminated co-pays and deductibles. The employer who requested the guidance suggested that the program would not be subject to the ADA.
The EEOC concluded that the program was a wellness plan under which a disability related inquiry is permitted if voluntary. According to the EEOC, a wellness plan is voluntary if the employer neither requires participation nor penalizes employees who do not participate. The EEOC noted the reward for participation and stated that it has not taken a position on whether and to what extent the availability of a reward could be considered either a requirement to participate or a penalty for failure to participate that would render the program involuntary.
The EEOC did say that even if the program was voluntary, the employer was nevertheless required to provide reasonable accommodation, absent undue hardship, to individuals who were unable to meet program requirements or engage in specific activities because of a disability. For example, the program required that participants maintain a certain level of medication adherence to remain in the program. According to the EEOC, if an employee is unable to maintain that adherence because of a disability, the employer would need to provide a reasonable accommodation (absent undue hardship) to allow the employee to participate in the program and to earn the reward. The EEOC said that in any case in which a participant may be removed from a program for failure to adhere to its requirements, a participant with a disability must be provided reasonable accommodation (absent undue hardship).
Employers who are designing their wellness programs should take into consideration the extent to which participants will need to be offered reasonable accommodations to meet program requirements — even if the employer otherwise believes that providing such accommodation undermines program goals.